GENERAL PLAN CASES AND OPINIONS OF THE ATTORNEY GENERAL TABLE OF CASES
Arnel Development Company v. City of Costa Mesa 311
Associated Homebuilders v. City of Livermore 293
Buena Vista Garden Apartment Association v. City of San Diego
Planning Department 300
Building Industry Association of San Diego v. Superior Court 295
Camp v. Mendocino County Board of Supervisors 310
City of Los Angeles v. State of California 308
Committee for Responsible Planning v. City of Indian Wells 295
Concerned Citizens of Calaveras County v. Board of Supervisors of
Calaveras County 303
Cormier v. County of San Luis Obispo 305
Debottari v. City Council of Norco 302
Duran v. Cassidy 316
Elysian Heights Residents Association v. City of Los Angeles 299
First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles 289
Friends of 'B' Street v. City of Hayward 313
Guardians of Turlock's Integrity v. Turlock City Council. 307
Karlson v. City of Camarillo 312
Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles 298
Mountain Defense League v. Board of Supervisors of San Diego County 314
Neighborhood Action Group v. County of Calaveras 304
No Oil v. City of Los Angeles 296
Save El Toro Association v. Days 315
Selby Realty Co. v. City of San Buenaventura 294
Sierra Club v. Board of Supervisors of Kern County 309
Twain Harte Homeowners Association, Inc. v. County of Tuolumne 306
Verdugo Woodlands Homeowners and Residents Association v.
City of Glendale 297
Yost v. Thomas 291
Youngblood v. Board of Supervisors of San Diego County 292
OPINIONS OF THE ATTORNEY GENERAL 317
Cases of the U.S. Supreme Court
GENERAL PLAN CASES AND OPINIONS OF THE ATTORNEY GENERAL
This section summarizes major litigation and pertinent opinions of the California Attorney General relating to the general plan. The California Supreme Court decisions and published decisions of the Courts of Appeal are included because they constitute legal precedents and illustrate both the meaning of planning law and the process of extracting such meaning from the statutes. The summaries in this appendix are not ofcial reports, but abstracts prepared by the Ofce of Planning and Research to highlight the major issues in each case. The Opinions of the California Attorney General are also summaries and are not verbatim.
City attorneys, county counsels, and county law libraries can provide the full text of the cases and opinions referenced. Readers should refer to those sources for additional information on each case as opinion.
The following is not intended to be a complete list of all important litigation affecting general plans. Due to space limitations, it is not possible for us to include all of the litigation that has occurred. Our intent is to include those cases which are of particular importance. For advice regarding the applicability of a case to specic situations, an attorney should be consulted. The cases are presented in reverse chronological order.
CASES OF THE U.S. SUPREME COURT
FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE V. COUNTY OF LOS ANGELES 107 S.Ct. 2378 (U.S. Supreme Court, 1987)
The Facts: First English Evangelical Lutheran Church of Glendale established Lutherglen campground for handicapped children in a canyon along Mill Creek in Los Angeles County. In 1977 a forest re denuded the watershed above the camp. The following year runoff from heavy rains caused Mill Creek to ood, destroying the camp buildings.
In response to the ood, Los Angeles County enacted Interim Ordinance No. 11855 in January 1979. The ordinance was effective immediately and prohibited the construction, reconstruction or enlargement of any buildings or structures within an interim ood protection area that included Lutherglen.
Within a month First English Evangelical led suit alleging in part that Interim Ordinance No. 11855 had denied the church all use of Lutherglen. The church also sought damages for the loss of use of its property.
The trial court granted Los Angeles County's motion to strike the allegation. The court based its action on Agins v. Tiburon (1979) 24 Cal.3d 266, in which the California Supreme Court decided that ordinance invalidation and not compensation was the appropriate remedy for Cases of the CALIFORNIA Supreme Court a regulatory taking. The California Court of Appeal afrmed this part of the trial court's holding and the California Supreme Court denied review.
The Holding: The U.S. Supreme Court reversed, holding that:
(1) A landowner is entitled to just compensation for the loss of use of his/her land that occurs while the property is subjected to an overly restrictive land use regulation. Consequently, just compensation is the proper remedy for a regulatory "taking" that is only temporarily in effect.
(2) Mere invalidation of an ordinance that effects a taking is a constitutionally insufcient remedy. This departs from the California Supreme Court's Agins decision. In addition, the Court noted that its holding did not deal with normal delays in obtaining building permits, changes in zoning ordinances, variances and the like.
As a basis for their holding the justices cited the Just Compensation Clause of the Fifth Amendment of the U.S. Constitution which says, "private property [shall not] be taken for public use, without just compensation." The Court also noted its "established doctrine" that as a general rule, "'property may be regulated to a certain extent, [but] if regulation goes too far it will be recognized as a taking.'" In addition, the Court referred to past case law to support its conclusion that "temporary" and "permanent" takings are alike when it comes to the propriety of awarding just compensation.
For the purposes of its holding, the High Court assumed that Interim Ordinance No. 11855 had denied First English Evangelical all use of its property. The Court, however, refrained from actually ruling on whether or not a taking had occurred and remanded the case to the appellate court for that decision.
Comments: This case is signicant because it marks the rst time the U.S. Supreme Court has held that a landowner is entitled to just compensation when his or her property is subjected to a regulatory taking, even when the excessive regulation is temporary. The holding is important for its statement as to the constitutionally proper remedy for a regulatory taking.
Nevertheless, the case fails to clarify the point at which a regulation "goes too far." No doubt there will be further litigation regarding this vital issue. In the meantime, local government ofcials should consult their legal counsels when enacting restrictive land use regulations, especially development moratoria. They should remember, however, that just because an ordinance restricts land use may not mean it effects a taking. The Supreme Court made a point of noting that it assumed the Los Angeles County ordinance prohibited all use of the Lutherglen property. In addition, the Court left open the possibility that certain safetybased regulations are not takings.
Cases of the CALIFORNIA Supreme Court
CASES OF THE CALIFORNIA SUPREME COURT
YOST V. THOMAS
36 Cal.3d 561
(California Supreme Court, 1984)
The Facts: Under the California Coastal Act, enacted in 1976, cities and counties must prepare and submit local coastal plans (LCP) to the California Coastal Commission. The Commission must either certify that the LCP conforms to the policies and requirements of the Coastal Act or disapprove the local plan.
The city of Santa Barbara's adopted LCP was certied by the Commission in 1981. The Park Plaza Corporation subsequently led several applications including requests for a general plan amendment, the adoption of a specic plan and a rezoning. After notice and hearing and upon the recommendation of the planning commission, the city council approved the applications and authorized the construction of a 360room hotel and conference facility.
A local citizens' group attempted to le a referendum petition in opposition to the council's approval, but the city refused to accept it on grounds that the action was not subject to referendum. The citizens sought a writ of mandate to compel the city to accept the petition. The trial court found for the city, holding that city's actions were administrative under the mandate of the Coastal Act. The powers of initiative and referendum apply only to legislative acts by a local governing body. Appeal to the California Supreme Court followed.
The Holding: The California Supreme Court reversed.
(1) The issue was whether the Coastal Act precludes referendum on any local land use measure after the coastal commission has approved a LCP. The Supreme Court cited the established principle that referendum applies only to legislative acts. Next the Court reviewed cases establishing the legislative nature of general plan adoption and amendment and of rezoning. The Court reasoned that specic plans are likewise legislative in nature.
(2) The Court proceeded to inquire whether the Coastal Act establishes a pervasive system of state control over a matter of state concern so as to convert local legislative bodies into administrative agents of the state. The Court concluded that the Legislature had not intended to limit local authority to a point beyond the reach of referendum. While the Coastal Commission may disapprove a local plan which is inconsistent with state policy or too weak to effectively implement it, the Commission may not specify the precise content of the local plan. Furthermore, local governments may choose the means of implementing the Coastal Act and may be more restrictive of particular development than state policies require.
Comment: This case establishes that general plans and rezonings are reviewable by referendum even within the area under the Coastal Act. The case also provides new authority for considering specic plans as legislative acts.
CASES OF the CALIFORNIA Supreme Court
YOUNGBLOOD V. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY
22 Cal.3d 644; 150 Cal.Rptr. 242
(California Supreme Court, 1978)
The Facts: In 1967, the County of San Diego adopted the San Dieguito Community Plan. Beginning in 1972, the County conducted hearings concerning possible amendments to the plan. In 1974, the Santa Fe Company led a tentative map for 131 lots. The Planning Commission and the Board of Supervisors determined that the map was consistent with the 1967 plan. The Board of Supervisors adopted an amended San Dieguito Community Plan approximately three weeks after the approval of the Santa Fe Company's tentative map. The board, however, denied a request by Youngblood and other neighboring property owners to rezone Santa Fe's property to the lower density called for by the amended plan. Santa Fe led a nal map which the county approved in 1975. The nal map complied with all 40 conditions imposed on the tentative map.
Youngblood sued to force the board to rezone the property "within a reasonable time" (Government Code Section 65860(c)), to the reduced density specied in the amended general plan. Youngblood also alleged that the board abused its discretion by refusing to rezone the property to conform to the amended plan and by approving nal subdivision maps that did not conform to the amended plan.
Youngblood claimed that Business and Professions Code Sections 11526(c) and 11549.5 (now Government Code Sections 66473.5 and 66474), which then required consistency of nal subdivision maps with general and specic plans, should be interpreted to mean the general and specic plans currently in effect, even if different from the plans in effect at the time of the tentative map approval. Youngblood argued that the Rancho Santa Fe nal map would have to be disapproved because it was inconsistent with the 1974 San Dieguito Community Plan.
Youngblood also argued that if consistency with the general plan is determined upon approval of the tentative map, a tentative map is not actually approved until all the conditions placed on the map are met. Thus, consistency with the plan would not be determined until the conditions are satised, not when the map is submitted. This would subject the tentative map to any changes in the general plan or specic plans.
The Holding: The California Supreme Court ruled for the county, holding that:
(1) An "approval" of a tentative map occurs when it is approved and accepted by the local body, not upon fulllment of the imposed conditions: "This statutory structure (of the Subdivision Map Act) compels the conclusion that the approval of a tentative map subject to conditions is nonetheless an approval for the purpose of determining that map's consistency with the existing general plan" (22 Cal.3d 644,652).
(2) Since the 1967 San Dieguito Community Plan did not specify a minimum lot size, only a density range of 0to0.75 dwelling units per acre, it was consistent for the subdivision map to allow 0.6 dwelling units per acre.
(3) The laws governing approval of subdivision maps establish that the appropriate time for determining consistency with the general plan is at the time of the approval of the tentative map. The appropriate general plan for determining consistency, then, is the general plan in effect at the time of the tentative map's approval, not the general plan in effect at the time of the nal map's approval.
Comment: Since it was not alleged that the 1967 San Dieguito Community Plan was inadequate or that the tentative subdivision map was inconsistent with the 1967 plan, the Court did not discuss the ministerial nature of a nal map approval where the tentative map approval was based on an inadequate general plan or was inconsistent with the plan.
ASSOCIATED HOMEBUILDERS V. CITY OF LIVERMORE
18 Cal.3d 582
(California Supreme Court, 1976)
The Facts: The voters of the City of Livermore enacted an initiative ordinance in April 1972 which restricted the issuance of building permits. Effective April 28, 1972 no further permits were to be issued unless it could be shown by the developer that his/her project would not lead to school overcrowding or double sessions in the local school district and would not exceed sewage treatment and water supply capacity as regulated by the Regional Water Quality Control Board.
The Associated Homebuilders (Builders) sued to block enforcement of the ordinance contending that it exceeded municipal power and that no compelling state interest justied the city's infringement of non-residents' rights to migrate to Livermore. The trial court issued a permanent injunction against the city based upon another of Builders contentions that the ordinance was unconstitutionally vague and precluded by Hurst v. City of Burlingame (1929) 207 Cal.3d 134 (which held that state statutes requiring notice and hearing to precede enactment of zoning ordinances also applied to initiatives). The City appealed.
The Holding: The California Supreme Court reversed, in favor of the City.
(1) The Supreme Court reversed its earlier Hurst holding, nding that the 1929 case was incorrectly decided. To require notice and hearing would preclude the use of initiatives in general law cities and unconstitutionally limit the electors' constitutional right to the initiative process.
(2) Further, it held that the ordinance was not vague. By interpreting the ordinance to incorporate standards established by the Livermore Valley Joint School District and the Regional Water Quality Control Board the Court found its terms to be sufciently specic to allow their implementation. The failure to designate a person or agency to determine when the standards are met was likewise not unconstitutionally vague. The duty to enforce the ordinance lies with the City's building inspector.
(3) Finally, the Court rejected the claim that the ordinance unconstitutionally bars immigration. The Court established a standard that is based not upon sustainability by a compelling state interest, but rather upon a reasonable relationship to "the welfare of the region affected by the ordinance." In other words, the City does not exceed its police powers when they are "reasonably related" not only to the welfare of the City's residents, but also those of the surrounding region. Builders failed to show that the City ordinance lacks such a reasonable relationship.
CASES OF the CALIFORNIA COURT OF APPEAL
SELBY REALTY CO. V. CITY OF SAN BUENAVENTURA
10 Cal.3d 110; 109 Cal.Rptr. 799
(California Supreme Court, 1973)
The Facts: The City of San Buenaventura and County of Ventura jointly adopted a general plan for an area straddling their boundaries. The city later denied the plaintiffs' building permit application for an apartment complex, based on the plaintiffs' refusal to make a dedication of land for street purposes. The proposed street was shown in the general plan.
Selby Realty sought: (1) damages from the county for inverse condemnation of their property because of adoption of the county portion of the plan, (2) a declaration of the manner in which the general plan affects the Selby's development rights on its city and county property; and, (3) a writ of mandate to compel the city to issue a building permit.
The Holding: The California Supreme Court ruled for the city and the county, holding that:
(1) The enactment of a general plan for future development of an area that indicates the potential public uses of privately owned land does not amount to a taking of the land (inverse condemnation). If a governmental entity were subject to a claim of inverse condemnation merely because the plan designated a parcel of land for potential public use, the process of community planning would either grind to a halt or deteriorate into publication of vacuous generalizations on the future use of land.
(2) The plaintiffs cannot challenge the validity of a general plan merely because it has been adopted, as mandated by state law. The plan is, by its very nature, merely tentative and subject to change. Whether any part of the plaintiffs' land will be taken for a street depends upon unpredictable future events. If the County implements the plan in the future in such manner as actually to affect the plaintiffs' free use of their property, the validity of the county's action may be challenged at that time.
(3) The adoption of a general plan is a legislative act. Since the wisdom of the plan lies within the legislative and not the judicial sphere, a landowner may not sue for a declaration of the owner's rights and liabilities under the plan as a means of probing the merits of the plan, without charging that a defect existed in the proceedings leading to its enactment.
CASES OF the CALIFORNIA COURT OF APPEAL
CASES OF THE CALIFORNIA COURT OF APPEAL
COMMITTEE FOR RESPONSIBLE PLANNING V. CITY OF INDIAN WELLS
209 Cal.App.3d 1005
(California Court of Appeal, 1989)
The Facts: A trial court ordered the City of Indian Wells' to bring its general plan into compliance with state law after nding that the plan failed to address various statutorily required issues and failed to achieve internal consistency. The court further ordered the city to cease granting building and related permits, discretionary land use approvals, rezoning, and variances until the general plan was updated.
The trial court's ruling also permitted interested parties to seek relief from its restrictions if it nds that the project would "signicantly impair the ability of the city to adopt a new general plan." Consequently, the city was forced to seek court approval for all signicant land use approvals while correcting its general plan, in accordance with Government Code section 65755's procedures.
The trial court also refused to grant permission to record an approved 29-lot subdivision map because it would signicantly impair the city's ability to adopt a new general plan.
The Holding: The California Court of Appeal ruled for the plaintiff, holding that:
(1) The subdivision may not be recorded because it could foreclose future land use options, including the city's ability to meet its housing commitments, thereby signicantly impairing its ability to adopt its general plan..
(2) The word "signicant" as used in Government Code section 65755 should have a similar meaning as in CEQA, i.e., a "substantial or potentially substantial, adverse change" in the ability of the City to adopt a general plan that complies with state law.
Comments: The case is signicant because it exemplies the type of action a court may take after it invalidates a jurisdiction's general plan. The case also afrms the importance of a general plan's housing element.
BUILDING INDUSTRY ASSOCIATION OF SAN DIEGO V. SUPERIOR COURT
211 Cal.App.3d 277
(California Court of Appeal, 1989)
The Facts: Oceanside voters enacted a residential growth control initiative ordinance limiting the number of dwelling units to be constructed annually in the city. The ordinance made exceptions for specic types of residential projects such as condominium conversions and residential units for low-income persons and the elderly, among others, and with certain restrictions. BIA sued to keep the city from enforcing the ordinance, but the superior court refused to interfere. BIA appealed, seeking a writ of mandate ordering the trial court to grant a motion for summary judgment.
Cases of the CALIFORNIA COURT OF APPEAL
The Holding: The California Court of Appeal ruled for the Superior Court and the city and denied BIA's petition for the writ, holding that:
(1) To prevent the city from enforcing its initiative ordinance would be inappropriate because issues of material fact were involved, and "a question of consistency between an ordinance and a general plan involves the need to make factual determinations." The court added that these issues had to be addressed rst in order to resolve BIA's claims that the new ordinance was inconsistent with Oceanside's general plan and violated state law.
(2) Government Code section 65860(b) and (c) prescribe a remedy for effecting compliance and consistency between the zoning ordinance and the general plan, but a nding of invalidity is not an appropriate remedy under this code section. Instead, a judicial compliance decree would be proper under that section.
(3) This case is distinguishable from court other cases involving the question of an initiative's consistency with a general plan. In deBottari v. City Council ((1985) 171 Cal.App.3d 1204), a referendum on the ballot would have resulted in zoning that was inconsistent with the general plan. The court rejected the referendum, which represented a clear, immediate inconsistency between zoning and the general plan, and which would have been "invalid when passed". In BIA, however, the court could not determine that there was any such clear, immediate inconsistency.
Comments: This case serves notice that a nding of invalidity as a remedy for a general plan /zoning ordinance inconsistency may be inappropriate under certain circumstances. This case also afrms the rule previously established in Sierra Club v. Kern County , whereby a land use regulation that is adopted under an invalid general plan is itself "invalid when passed."
NO OIL, INC. V. CITY OF LOS ANGELES
196 Cal.App.3d 223
(California Court of Appeal, 1988)
The Facts: In October 1980, Occidental Petroleum (Occidental) led applications and an environmental assessment with the City of Los Angeles relating to the establishment of three oil drilling districts and a drill site in Pacic Palisades. In November of 1982, the city planning commission considered the applications and project EIR and denied the rezonings. Occidental appealed this decision to the city council.
The council approved Occidental's appeal in June 1984, based upon a supplemental EIR. Pursuant to city charter, the ordinances were referred back to the planning commission. The commission denied them again and Occidental made another appeal to the council. In January 1985, the council granted nal approval of the oil drilling districts.
No Oil, an association of area landowners, led suit. The trial court held that the project EIR should have discussed the four proposed pipeline routes associated with the project and that the council's CEQA ndings were inadequate. The court ordered the approvals set aside and returned the matter to the council for clarication of the ndings.
The city and Occidental appealed. No Oil cross-appealed contending, in part, that the drilling ordinances were inconsistent with portions of the city's general plan. The proposed drilling zones were designated for open space use on the city's Brentwood-Pacic Palisades
Cases of the CALIFORNIA COURT OF APPEAL
district plan. The city had specically found that the drilling ordinances were consistent with its general and district plans. No Oil further contended that the drilling ordinances were inconsistent with the city's district plan and with the open space and conservation elements of its general plan. Their argument rested on two main points: that oil drilling is an exclusively industrial use and that the project site's open space designation precludes industrial uses.
The Holding: The Court of Appeal reversed and held as follows:
(1) Judicial inquiry into EIR adequacy is limited to determining whether the agency has proceeded in accordance with law and whether its decision is based upon substantial evidence in the record. The court held that substantial evidence existed to show that Occidental would not be able to specify the exact location or construction details of the pipelines until the completion of the project's exploratory phase. Therefore, the EIR need not address pipeline impacts in detail.
(2) Under the provisions of the city's plans and state planning law (Government Code section 65560) "open-space land" may include open space used for "the managed production of resources" in areas containing major mineral deposits. Oil recovery is managed production of a natural resource. So, the project could reasonably be found consistent with the policies of the city general and district plans.
(3) With regard to zoning, the city did not act in an arbitrary manner or reach a conclusion that could not reasonably be made given the evidence before it. The city's zoning scheme did not limit oil drilling exclusively to industrial zones. It was apparent that drilling and production could be approved in any zone upon approval of a supplemental use district.
Comments: This is the rst case to take a close look at one of the central issues of the open -space element. Under this interpretation of section 65560(b), open-space uses could be construed to include such resource recovery operations as oil production facilities. In light of this, it may behoove local governments to specify the types of open-space land being designated on their open-space element (e.g., is it open space for the preservation of natural resources, for the managed production of resources, for outdoor recreation, or for public health and safety?).
VERDUGO WOODLANDS HOMEOWNERS AND RESIDENTS ASSOCIATION
V. CITY OF GLENDALE
179 Cal.App.3d 696
(California Court of Appeal, 1986)
The Facts: Glendale, a charter city, announced a program to make its zoning ordinance consistent with its general plan. This included downzoning several multifamily residential areas to lower densities. At the same time, Section 1102 of the Zoning Appendix of the Glendale Municipal Code provided that no permit would be issued for development which would conict with more restrictive proposed zoning.
When the Verdugo Woodlands Homeowners and Residents Association (Homeowners) informed the city council that the city had approved several building permits for multifamily projects which were in conict with the proposed consistency program, the council enacted an emergency ordinance exempting its actions from Section 1102 and allowing future
Cases of the CALIFORNIA COURT OF APPEAL
projects to be considered on a casebycase basis. In amending Section 1102, the council found that the section was "not intended to apply when amendment to a general plan was being considered." As a result of this action, the city received additional applications for multifamily development which it evaluated without reference to its general plan.
Homeowners sued and obtained a temporary injunction. The trial court denied Homeowners' request for a permanent injunction on the grounds that Section 65803 of the Government Code specically exempts charter cities with fewer than two million inhabitants from the general plan consistency requirement applicable to general law cities. It should be noted that Government Code Section 65860 requires that the City of Los Angeles meet this require ment.
The Holding: The California Court of Appeal afrmed. It held as follows:
(1) Homeowners argued that pursuant to Section 65302 the city must maintain a complete general plan and that case law such as Friends of "B" St. v. City of Hayward (1980) 106 Cal.App.3d 988, had expanded the consistency requirement to charter cities. Rejecting this argument, the Court pointed out that the language of Section 65803 expressly exempts charter cities (other than Los Angeles) from the consistency requirement and that to harmonize the exemption with the legislative scheme of planning law, it is necessary to subject it to strict construction. Friends of "B" St. and other cases cited by Homeowners did not address the question of zoning consistency that was central to this case.
(2) Unless it has adopted such a requirement as part of its municipal charter or ordinances, a charter city of less than two million inhabitants is not required to establish and maintain consistency between its general plan and zoning ordinance.
Despite its decision, the appellate court was guardedly sympathetic to Homeowners and critical of the city's actions, stating that: "The Legislature, in light of this situation in one charter city, may well wish to reexamine the issue of the exemption of charter cities from zoning regulation."
LAS VIRGENES HOMEOWNERS FEDERATION, INC. V. COUNTY OF
LOS ANGELES
177 Cal.App.3d 300
(California Court of Appeal, 1986)
The Facts: Los Angeles County approved a project for 1,192 dwelling units, one million square feet of light industrial space, and various public uses on 516 rural acres located south of the Ventura Freeway and within the Santa Monica Mountains National Recreation Area. The nal EIR was a "tiered" document based on the Los Angeles County General Plan and MalibuSanta Monica Mountains Area Plan (MSMMAP) EIRs (CEQA Guidelines, Section 15152).
The Las Virgenes Homeowners Federation (Homeowners) led suit against the county and the developer alleging that the EIR for the project was decient, that the county had abused its discretion by approving a project that would have signicant unmitigatable effects on the environment, that the MSMMAP was inconsistent with the county plan, and that the project was inconsistent with both plans. The trial court held for the county and the developer. Homeowners appealed.
Cases of the CALIFORNIA COURT OF APPEAL
The Holding: The California Court of Appeal afrmed, and the Court found the following:
(1) The tiered EIR met the substantive requirements of CEQA for discussion of cumulative impacts, project alternatives, and mitigation measures. It need not reiterate matters that were adequately covered in the county general plan and MSMMAP EIRs. Also, the county was not required to make a statement of overriding considerations when the expected impacts had been at least partially mitigated. CEQA does not require that the project's adverse impacts be completely avoided or reduced to insignicance prior to approval.
(2) Los Angeles County's plan consists of general elements that set countywide policy and community plans which deal with local issues. The MSMMAP's purpose is "to identify specic land uses, determine actual boundaries between land use categories, and establishspecic residential density ranges within the parameters established by the countywide goals and policies."
A 35acre portion of the project was not literally consistent with the densities shown on the county general plan and MSMMAP maps. The Court held that: (1) the general plan map did not apply at a small scale and therefore the MSMMAP was the pertinent land use policy document, (2) there was no inconsistency between the countywide plan and the MSMMAP, and (3) the text as well as the map of the MSMMAP must be examined when determining consistency. As a result, the Court held that project density did not exceed the overall ceiling set by the MSMMAP and was consistent with both the MSMMAP and the county general plan.
ELYSIAN HEIGHTS RESIDENTS ASSOCIATION V. CITY OF LOS ANGELES
182 Cal.App.3d 21
(California Court of Appeal, 1986)
The Facts: Morton Park Associates (Morton) purchased ve contiguous lots in the Elysian Heights neighborhood of Los Angeles in order to construct a 46unit apartment complex as allowed by the existing zoning. Morton obtained the necessary city permits, demolished existing structures, and began site preparation work. The Elysian Heights Residents Association (Elysian) attempted to halt construction by appealing issuance of the building permit. They claimed that the project density exceeded the twelveunit maximum prescribed by the city's Silver LakeEcho Park district plan and, by inference, the city general plan.
While Elysian's administrative appeals were in progress, several events took place which affected the project. First, the city issued a temporary moratorium on all projects which exceeded the district plan's requirements. This would stop building until the city made an administrative nding of vested rights. Second, the Federation of Hillside Canyon Associa tions brought suit against the city (L.A. Sup.Ct. Nos. 526, 616) to prevent the issuance of building permits for development that would be inconsistent with the general plan.
The superior court ruled that the city must bring its zoning into consistency with its general plan. As a result of this ruling and to demonstrate its good faith, the city enacted an ordinance prohibiting further issuance of permits for projects which were incompatible with the general plan. This ordinance exempted previously issued permits such as Morton's.
Elysian led suit against the city when all administrative appeals were denied and the City Board of Building and Safety Commissioners ruled that Morton had accrued a vested right
Cases of the CALIFORNIA COURT OF APPEAL
to continue the project. The trial court dismissed Elysian's case, ruling that it would not be equitable to terminate Morton's project in view of the expenditures made prior to the moratorium and in reliance of the building permit. Elysian appealed.
The Holding: The California Appeal Court afrmed on a twoone vote and held the following:
(1) The statute which requires the City of Los Angeles to maintain consistency between its general plan and zoning ordinance (Government Code Section 65860) did not require such consistency be extended to building permits. "[N]either the language of Section 65860 nor the statutory scheme in general mandates that building permits be scrutinized for plan consistency. [H]ad the legislature intended to fashion such a requirement, it clearly had the power to do so." In dismissing Elysian's central argument, that case law had established a link between the general plan and all land use decisions, the court held that Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, was distinguishable from this case because it was based upon an alleged inadequacy of the Calaveras County general plan. Elysian had made no such allegations regarding the city general plan.
(2) Furthermore, there was no local requirement for consistency between the plan and building permits. The ordinance in effect at the time Morton's permit was issued required only consistency between the zoning and the use. The city's interim ordinance, which required consistency with the plan, was not applicable in the instant case because it took effect after Morton had obtained permits. "[O]nce an applicant has complied with the appropriate land use regulations, the Department of Building and Safety has no discretion to deny issuance of a permit under the code."
(3) "Zoning ordinances are presumed to be a valid exercise of the police power with every intendment in favor of their validity."
Comment: The dissenting justice found Elysian's arguments convincing and pointed out that although the permits were consistent with zoning, the city's zoning was "concedely contrary to law" because it failed to maintain consistency with the general plan. In his view, the city's "turtling efforts to correct its long invalid zoning" had resulted in the continued erection of buildings "in locales wherein it had long been determined they had no place." He cited this decision as an example of why citizens "increasing[ly] resort to the initiative process to protect those public interests they believe their representatives have failed to guard."
Further Action: The California Supreme Court declined to hear Elysian's appeal of this decision.
BUENA VISTA GARDEN APARTMENTS ASSOCIATION V. CITY OF
SAN DIEGO PLANNING DEPARTMENT
175 Cal.App.3d 289
(California Court of Appeal, 1985)
The Facts: The 56acre Buena Vista Gardens Apartments complex represented approxi mately 34 percent of the available rental housing in the San Diego community of Clairemont Mesa. The majority of tenants were retired and of low or moderate income. At the request of Woodcrest Development, Inc. and Prudent Buena Vista Properties, the San Diego City
Cases of the CALIFORNIA COURT OF APPEAL
Council conditionally approved a planned residential development permit allowing: (1) the demolition of 1,023 Buena Vista apartments and (2) the replacement of the units with 2,287 condominiums over a tenyear period.
The Buena Vista Gardens Apartments Association and the Housing Coalition of Greater San Diego (together Association) sought a writ of mandate to set aside the city's approval. Association claimed that San Diego lacked the authority to approve the development permit because certain provisions of the city's housing element failed to comply with the specic requirements of the California Government Code. Association also contended that the city's ndings for approving the permit were not supported by the evidence.
San Diego countered Association's challenges to its housing element by maintaining that the court's standard of review for a housing element was found in Bownds v. City of Glendale (1980) 113 Cal.App.3d 875. The Bownds court stated that, "Absent a complete failure or at least substantial failure on the part of a local governmental agency to adopt a plan which approximates the Legislature's expressed desires, the courts are illequipped to determine whether the language used in a local plan is 'adequate' to achieve the broad general goals of the Legislature."
Furthermore, the city claimed that the housing element requirements under Government Code Section 65583, subdivision (c) interfered with San Diego's charter city status. The city maintained that the statute wrongfully required San Diego to use its legislative and administrative authority to accomplish the state's housing goal. The Superior Court of San Diego County decided in favor of the city and Association appealed.
The Holding: The California Court of Appeal afrmed in part; and reversed in part, it held as follows:
(1) With one exception, all the challenged provisions of San Diego's housing element complied with the California Government Code. The exception was that San Diego's housing element lacked necessary programs for conserving existing affordable housing opportunities and, therefore, did not substantially comply with Government Code Section 65583(c)(4). Consequently, the Court granted a writ of mandate directing the lower court to refuse approval of the development permit until San Diego's housing element was brought into compliance as specied.
(2) In reviewing and deciding upon individual aspects of San Diego's element, the Court disagreed with the city as to the adequacy of the standard of review specied in Bownds. The court noted that Bownds had been decided before the Legislature enacted detailed housing element requirements. Furthermore, the Court pointed out that the Legislature intended that the term "substantially complies" be given the interpretation expressed by the court in Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334.
Consequently, "[T]he Bownds decision no longer accurately reects the state of the legislatively mandated housing element nor its standard of review. The standard of review is not limited to whether there is a 'complete' or 'substantial' failure of a city to adopt a plan which 'approximates the Legislature's expressed desires' ( Bownds v. City of Glendale, supra, 113 Cal.App.3d 875, 884) but whether there is 'actual compliance' ( Camp v. Board of Supervisors, supra, 123 Cal.App.3d 334, 348) with specied requirements. Bownds retains validity to the extent it prohibits a court from examining the 'merits' of an element."
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(3) The Court observed that both the Legislature and the judiciary have found housing to be a matter of statewide concern. The Court pointed out that, "if a matter is of statewide concern, then charter cities [such as San Diego] must yield to the applicable general state laws regardless of the provisions of its [sic] charter." Consequently, the city inappropriately contended that Government Code Section 65583 subdivision (c) was inapplicable to San Diego.
(4) Finally, except with regard to the lack of compliance noted above, the Court found that San Diego's ndings for permit approval were adequately supported by the evidence.
DEBOTTARI V. CITY COUNCIL OF NORCO
171 Cal.App.3d 1204
(California Court of Appeal, 1985)
The Facts: The Norco City Council approved a general plan amendment which redesig nated a 30 to 40 acre parcel of land from residential/agricultural (zero to two units per acre) to residential-low density (three to four units per acre). Subsequently, the council rezoned the site from R118 (approximately two singlefamily houses per acre) to R110 (approxi mately four singlefamily houses per acre).
Louis deBottari and other qualied voters and residents of Norco circulated petitions protesting the zone change ordinances and calling for their repeal or, alternatively, a referendum. The Norco city clerk certied that the petitions were in proper form and contained the requisite number of signatures.
The petitions were then presented to the Norco City Council pursuant to the California Elections Code Section 4055, which required the council to either repeal the rezoning ordinances or call a referendum. The council refused to do either contending that a repeal of the ordinances would result in zoning that was inconsistent with the city's general plan.
deBottari then sought a writ of mandate to compel the council to either repeal the ordinances or submit the issue to the voters. The writ was denied by the Superior Court of Riverside County. deBottari appealed the court's decision.
The Holding: The California Court of Appeal afrmed.
(1) Normally, Norco's city council would have been required by the California Election Code to either repeal the challenged ordinances or to submit the zoning matter to a referendum. Furthermore, the Court noted that post election review of a challenged referendum was usually more appropriate than preelection scrutiny.
However, two exceptions exist to this general rule. First, a court will intervene before an election if the voters are not empowered to adopt a proposal in the rst instance. The Court noted, for example, that election ofcials have been required to withhold initiative and referendum proposals from the ballot when such measures were not legislative in nature. Secondly, preelection review would be warranted if the substantive provisions of a ballot measure were legally invalid. The Court found that Norco had established the requisite "compelling showing" that the latter exception existed in this case.
(2) The Court agreed with the city that a repeal of the challenged ordinances by means of the referendum would have violated California Government Code Section 65860. A repeal
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would have made the city's zoning ordinance inconsistent with Norco's general plan; in other words, the ordinance would have been "clearly invalid." Consequently the Court afrmed the lower court. There is a general plan consistency requirement for zoning referenda.
CONCERNED CITIZENS OF CALAVERAS COUNTY V. BOARD OF
SUPERVISORS OF CALAVERAS COUNTY
166 Cal.App.3d 90
(California Court of Appeal, March 26 1985)
The Facts: In April 1982, the Calaveras County Board of Supervisors adopted a new general plan for the county. Subsequently, a citizens' group, Concerned Citizens of Calaveras County and a resident, James Cox, (plaintiffs), led for a writ of mandate, alleging that the general plan was inadequate because: (1) the circulation and the land use elements were internally inconsistent and insufciently correlated, (2) solid and liquid waste disposal facilities were not designated, and (3) the plan omitted population density standards for three areas of the county.
The trial court concluded that the circulation element was adequate, the land use element's omission of population density standards rendered it legally inadequate and areas for waste disposal need not be designated in the general plan until they were identied by the county. The court therefore ordered the county to adopt proper density standards but denied the plaintiffs' request for attorney fees. The plaintiffs appealed.
The Holding: The California Court of Appeal afrmed the lower court's ruling on population density standards and on waste disposal designations, but reversed the remainder of the decision.
(1) The Court based its decision primarily on Sections 65300.5 and 65302 (b) of the Government Code. Section 65300.5 requires that a general plan and its elements comprise an integrated, internally consistent and compatible statement of policies. Section 65302 (b) requires that a general plan contain a circulation element which addresses transportation infrastructure and which is correlated with the land use element.
In reviewing the circulation element, the Court found that one portion of the element indicated that county roads were sufcient to accomodate the projected trafc while another portion of the element described a worsening trafc situation aggravated by continued subdivision activity and development in areas served by inadequate roads. Therefore, the Court found the circulation element internally inconsistent and in violation of Section 65300.5.
(2) Next, the Court examined the issue of correlation between the land use and the circulation elements. The Court interpreted Section 65302 (b) to mean that the circulation element must describe, discuss, and set forth standards and proposals reecting any change in demands on the various roadways or transportation facilities of the county as a result of changes in uses of land contemplated by the plan.
The Court noted that the land use element, which provided for substantial growth, did not discuss the potential inadequacy of the roadways nor contain proposals by which growth would be restricted in the event the road system were overwhelmed. At the same time, the circulation element pointed out current and expected deciencies in the state highways
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serving the county. Further, the element's only policy for rectifying the situation was to "lobby for funds." No funding sources were otherwise identied.
The Court concluded that the general plan could not simultaneously identify substantial shortcomings in the circulation system, report that no known funding sources (or other alternatives) were available to remedy the problem, and still achieve statutorily mandated correlation with its land use element (which provides for substantial population increases) simply by containing a policy that the county will lobby for funds. Therefore, the Court determined that the land use and the circulation elements were not sufciently correlated and violated Section 65302 (b).
(3) On the matter of attorney fees, the Court awarded the fees noting that the citizens' group should have prevailed in its challenge to the land use and circulation elements.
NEIGHBORHOOD ACTION GROUP V. COUNTY OF CALAVERAS
156 Cal.App.3d 1176
(California Court of Appeal, 1984)
The Facts: In 1980, Teichert Construction Company submitted an application for a conditional use permit (CUP) to the Calaveras County Planning Commission. The application requested authorization to process sand and gravel from hydraulic mine tailings near the town of Jenny Lind. On October 16, 1980, the commission approved the CUP and certied the nal environmental impact report (EIR). The Neighborhood Action Group (NAG), an association of taxpayers residing in the vicinity of the project site, appealed the matter to the county board of supervisors. The board upheld the commission's decision.
Subsequently, NAG led a suit claiming that: 1) the permit was invalid because the county's general plan did not comply with state statute; 2) the EIR was inadequate; and 3) the CUP did not conform to the current general plan. The trial court concurred with the county's contention that the facts submitted by NAG did not justify a lawsuit regarding the rst allegation the issue of an adequate general plan. The two other claims proceeded to trial and the court ruled for the county. NAG appealed.
The Holding: The California Court of Appeal reversed and held as follows:
(1) Upon reviewing relevant law, the Court held that although there is no explicit requirement that the CUP be consistent with an adequate general plan, it's validity is derived from compliance with the hierarchy of planning laws a use permit is governed by the zoning law, which in turn must comply with the adopted general plan which in turn must conform to state law. According to the Court, a general plan that fails to provide the required statutory criteria relevant to the use being sought, will not provide a valid measure by which a permit can be evaluated. Thus, when a general plan lacks relevant criteria, the validity of a CUP issued is questionable.
(2) The Court examined the county noise element and found it lacking. The EIR prepared for the CUP could not assess the potential noise impacts of the project without the noise standards that should be provided by the noise element.
(3) Having established that granting of a CUP must be based on an adequate general plan, the Court sought the legal alternatives available to Neighborhood. The Court noting Section
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1094.5(b) of the Code of Civil Procedure, held that an administrative act, such as the issuance of a CUP, may be challenged if the respondent did not proceed in the manner required by law. According to the Court, the CUP was not issued in the manner required by law since it was based on an inadequate general plan.
CORMIER V. COUNTY OF SAN LUIS OBISPO
161 Cal.App.3d 850
(California Court of Appeal, 1984)
The Facts: In August 1977, Jay Cormier purchased seven acres of unimproved land in San Luis Obispo County. The property was zoned for highway commercial use and Cormier planned to develop a motel-restaurant on the site. Subsequently, he learned that the county proposed to revise the general plan's land use element and adopt a zoning ordinance which would result in the redesignation of his property for ruralresidential uses (which would permit a single residence or a restaurant with limited use). Over Cormier's protests, the planning commission recommended adoption of the revised element and its accompanying ordinance.
Cormier formally submitted a development plan before the board of supervisors had held any public hearings on the countyinitiated land use element and zoning changes. The board approved the proposed changes effective January 17, 1981. County staff discontinued processing Cormier's permit in April 1981 when it became clear that Cormier would not modify his proposal to reect the new designations. Cormier then applied for a general plan amendment to restore the previous designations. In June, the board denied this application.
Cormier petitioned the superior court to issue a writ of mandate compelling the board of supervisors and planning commission to redesignate and rezone his property to the original highway commercial uses. He also led a complaint for declaratory relief to determine whether the county's revised general plan was valid. Cormier charged that the board had failed to make required ndings that the downzoning and redesignation bore a substantial and reasonable relationship to the promotion of the public health, safety, and welfare. The trial court upheld the county's decisions and Cormier appealed.
The Holding: The Court of Appeal afrmed. The Court held that:
(1) Specic ndings were not required for the adoption of general plans or zoning ordinances. The Court distinguished this case from Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, which involved approval of a variance. The Court noted that in Topanga, the legislative body was obligated to make ndings because it had made an adjudicative decision (variances, conditional use permits, and subdivision proposals are classied as adjudicative). However, legislative decisions such as general plan amendments and zoning reclassications need only those ndings expressly required by law. No such ndings apply to the board's actions related to Cormier's property.
(2) The county's land use ordinance was valid and constitutional. In resolving this question, the Court applied the "fairly debatable" standard. If the validity of the county's action is "fairly debatable," the county's judgment must be allowed to control. The Court found the ordinance valid under this test and further noted that courts are traditionally reluctant to interfere with the activities of local government in zoning real property.
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(3) The Court then considered Cormier's third claim that the board's rezoning was arbitrary, discriminatory, and capricious because the zone classication was selected "with out consideration of the various zoning alternatives or the best utilization of the property and only because [it] constituted the fullest possible downzoning" [quotation from Arnel Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330]. The Court found the evidence demonstrated that the general plan redesignation and the downzoning were part of an ongoing and comprehensive general plan revision, and that the board carefully consid ered, discussed, and reviewed the issues involved in allowing commercial development adjacent to the freeway interchange where Cormier's property is located.
Further Action. The California Supreme Court denied Cormier's petition for appeal on January 30, 1985.
TWAIN HARTE HOMEOWNERS ASSOCIATION, INC. V. COUNTY OF TUOLUMNE
138 Cal.App. 3d 664
(California Court of Appeal, 1982)
The Facts: The Tuolumne County Board of Supervisors certied an EIR for a new general plan. At the same hearing, the board made several wording changes to the draft plan, referring it back to the planning commission for consideration. When the planning director later declared the wording changes to be consistent with the EIR, the board adopted the modied plan.
The Twain Harte Homeowners Association (Association), led suit to compel the county to rescind certication of the EIR, claiming that the wording changes created potential environmental impacts not addressed in the EIR. It also sought injunctive relief pending preparation of a new EIR, to prevent approval of projects which could have signicant environmental impacts. Further, the Association requested preparation of a new plan, alleging the land use, circulation, and housing elements of the general plan to be inadequate and also requested attorneys' fees. The trial court ruled for the county, except to require the county to reconsider including certain timberlands in the general plan. The Association appealed.
The Holding: The California Court of Appeal reversed and held as follows:
(1) The EIR was an adequate, reasoned analysis, and a good faith effort at full disclosure; however, it was decient in two respects, resulting from the wording changes made to the draft plan after certication of the EIR. The changes deleted provisions restricting heavy industrial development in a certain area, and amended a policy statement regarding seismic safety. The Court held that these changes, without further analysis in the EIR, constituted an abuse of the county's authority.
(2) Regarding the general plan, the housing element was adequate, but the land use and circulation elements were not. The land use element failed to include standards of population density and building intensity as required by Government Code Section 65302 (a).
The Court reasoned that population density refers to numbers of people in a given area, and not to dwelling units per acre, unless the basis for correlation between the measure of
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dwelling units per acre and numbers of people is set forth in the plan. Tuolumne County's plan contained no such correlation. Further, the plan contained no standards for building intensity for the nonresidential areas of the county. In addition, the Court could not determine from the evidence whether in fact the circulation element was correlated with the land use element as required by Government Code Section 65302 (b), and thus concluded that it was not.
(3) The Court directed the trial court to exercise its discretion under the Code of Civil Procedure in awarding attorneys' fees.
GUARDIANS OF TURLOCK'S INTEGRITY V. TURLOCK CITY COUNCIL
149 Cal.App.3d 584
(California Court of Appeal, 1985)
The Facts: Cargill, Inc. requested that Turlock prezone two parcels of land as "planned development" to facilitate construction of a soybean processing plant. The property, under the jurisdiction of Stanislaus County, was zoned agriculture, but was slated for annexation by Turlock.
During the processing of the permit, the city sent two, instead of the required ten, copies of the draft environmental impact report (EIR) to the State Clearinghouse and provided only seven days for state review of the drafts before the proposal was to be heard before the city council. Following the hearing, the city prepared responses to comments on the draft EIR and incorporated these responses in an addendum. In November 1981, the council certied the nal EIR and concurrently approved the requested prezoning. At that time, the City's general plan lacked noise and scenic highway elements.
Realizing its general plan's deciency, the city applied for, and in February 1982 was granted, a general plan extension by the Ofce of Planning and Research (OPR). The extension, in effect until February 1983, provided the city with immunity from lawsuits questioning the adequacy of the general plan while it was being completed.
The Guardians of Turlock's Integrity, a citizens' group, sued contending that: 1) the city's general plan was invalid because it lacked the mandatory noise element; 2) the project and EIR were inconsistent with the general plan; and 3) the city did not comply with the procedures mandated by CEQA in preparing the EIR.
The trial court ruled against Guardians except on the issue of the adequacy of the nal EIR's response to the comments regarding the noise impacts. On this matter, the Court ordered the city to set aside its approval until an EIR adequately addressing the noise factors was certied. Guardians appealed.
The Holding: The California Court of Appeal reversed except on the trial court's ruling that the EIR was inadequate. The Court held:
(1) The trial court had erroneously determined that the OPR extension had rendered the question of the general plan's validity moot. The Court found Turlock's general plan invalid for lack of a noise element and noted that the Cargill project was led and acted on prior to the effective date of the extension and therefore did not receive protection from court challenges. The Court remanded the matter to the city with instructions that approval of the
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EIR and prezoning be granted only if the project were consistent with the noise element to be prepared.
(2) The trial court had erred by utilizing traditional mandamus review (i.e. whether the city's action was arbitrary and capricious) when determining that the EIR and project were not inconsistent with the general plan. The substantial evidence standard of administrative mandamus, as mandated by Public Resources Code Section 21168, was the proper standard of review for CEQA matters and prezoning applications. Since consistency between the EIR, the project, and the general plan will have to be determined by the city after the lack of a noise element is remedied, further judicial review may be necessary. If so, the Court stated that such review must be based on the substantial evidence test.
(3) The Court of Appeal reversed the lower court ruling that the Cargill project occupied fewer than 40 acres and was thereby exempt from state-wide review. The Court determined that to "afford the fullest possible protection to the environment within the reasonable scope of the statutory language" as mandated by Bozung v. LAFCO (1975) 13 Cal.3d 263, the project area should include the entire area that would be annexed as a result of the approval of the prezoning, not just the soybean plant site.
Based on this interpretation, several roads and railroad rightsofway were included, thereby creating a project area greater than 40 acres and thus subject to statewide review. Since the trial court did not rule on whether Turlock had complied with the state-wide review procedures, the matter was remanded to the lower court for such a determination.
(4) If a relevant general plan element is missing, such as the noise element in this instance, an EIR prepared for a project under that plan is incomplete. The EIR is not inconsistent with the plan, but rather it lacks all of the information that should have been provided by the plan.
CITY OF LOS ANGELES V. STATE OF CALIFORNIA
138 Cal.App.3d 526
(California Court of Appeal, 1982)
The Facts: The State of California appealed from a judgment entered in favor of the City of Los Angeles declaring subdivision (d) of Government Code Section 65860 to be "unconstitutional on its face." Briey stated, this subdivision requires that the zoning ordinance of a charter city with a population of 2,000,000 or more must be consistent with the city's general plan by July 1, 1982 and must be maintained in that condition.
The trial court found that the statute: (1) was vague and unintelligible; (2) intruded into areas reserved to municipalities under their "home rule" without an "overriding concern" as required by the State Constitution; and, (3) discriminated against the City of Los Angeles by singling it out for special treatment for no legally recognized reason.
The Holding: The California Court of Appeal reversed and, without deciding upon the merits of the underlying legislation, concluded that the statute was not facially unconstitu tional.
(1) The Court concluded that although the legislation was "inartfully drafted" it was not unconstitutionally vague. When construed in light of Section 65860 as a whole, "it provides a clear and ascertainable standard." The Court's interpretation was also based upon the
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principle that statutes should be interpreted when possible to uphold their validity.
(2) Notwithstanding the "home rule" provision of the California Constitution (Article XI, Section 5, Subdivision(a)) which authorizes charter cities to make and enforce all regulations with respect to municipal affairs, the general law may prevail over local enactments of a city when the subject of the general law is of statewide concern. When doubt exists over the existence of statewide concern, such doubt must be resolved in favor of the legislative authority of the state.
(3) The fact that Section 65860 applies only to the City of Los Angeles does not render the section invalid. The state is free to "conne its regulation to those classes of cases in which the need is deemed to be most evident[citation]." So long as the classication bears a rational relationship to a legitimate state purpose, the enactment of the legislation will be upheld. The court will inquire "only into the propriety, and not the sagacity" of the legislature's decision.
SIERRA CLUB V. BOARD OF SUPERVISORS OF KERN COUNTY
126 Cal.App.3d 698; 179 Cal.Rptr. 261
(California Court of Appeal, 1981)
The Facts: In February 1978, the Kern County Board of Supervisors approved a zoning change from agricultural to residential use on property owned by the Ming Center Investment Company. At the time of the zoning approval, the residential zoning was consistent with the land use element of the general plan but inconsistent with the open-space /conservation element. Anticipating possible conicts between elements of the general plan, the board adopted a statement as part of the land use element that the 1973 land use element would take precedence over the previously adopted (1972) openspace/conservation element where conicts existed between the elements.
The Sierra Club and interested individuals led a writ of mandate to set aside the decision approving the zoning change, arguing that the zoning change was invalid on several grounds, including inconsistencies between the land use and openspace/conservation elements. After the trial court ruled against the plaintiffs, the county adopted the Rosedale Community Plan for the area in question, which eliminated the inconsistency between the elements.
The Holding: The California Court of Appeal ruled in part for the Sierra Club, holding that:
(1) The general plan, at the time the zoning ordinance amendment for Ming Center was adopted, was internally inconsistent. Consequently the zoning ordinance amendment was invalid when passed.
(2) The use of a precedence clause, where the openspace element is subordinated to another element, violated the general plan internal consistency requirement, as well as specic requirements of the Open-Space Lands Act.
(3) The issue of internal consistency was moot as applied to the zoning action involving the Ming Center property. The adoption of the Rosedale Community Plan eliminated the problem of internal inconsistency in the general plan as it affected the zoning of the Ming Center property. Since the zoning was consistent with the community plan and the general plan was internally consistent, no purpose would be served by setting aside the zoning ordinance and requiring the board of supervisors to rezone the property.
CASES OF the CALIFORNIA COURT OF APPEAL
CAMP V. MENDOCINO COUNTY BOARD OF SUPERVISORS
123 Cal.App.3d 334; 176 Cal.Rptr. 620
(California Court of Appeal, 1981)
The Facts: The Mendocino County Board of Supervisors adopted its general plan as a collection of elements over a period of ten years, 1967 to 1977. In 1978 the county approved several tentative subdivision maps, including two for projects known as Eden Valley Ranch and Waunita Meadows.
In March 1978, Walter Camp, a county resident, led a writ of mandate to set aside the tentative map approval for Waunita Meadows. In November 1978, other local residents led another writ to overturn the board's approval of the Eden Valley Ranch map. A third writ, also concerning Eden Valley Ranch, was subsequently led by the State Attorney General. In each suit, the plaintiffs alleged that the general plan was inadequate and that a tentative subdivision map could not be approved where the general plan was inadequate.
The plaintiffs sought several remedies, including a declaratory order that the general plan was legally inadequate, an order compelling the county to set aside the Waunita Meadows and the Eden Valley Ranch subdivision approvals, an order requiring the county to adopt an adequate general plan, and an injunction against future subdivision activity until an adequate plan was prepared. The county challenged the authority of the court to examine the plan for its adequacy, alleging that this constituted an impermissible inquiry into the merits of the plan.
The Holding: The California Court of Appeal combined the three cases and ruled for the plaintiffs, holding that:
(1) Courts have the authority to review a general plan for substantial compliance with the statutory requirements of the California Government Code.
(2) The land use element of the Mendocino County General Plan failed to comply with the requirements of Government Code Section 65302 (a) because it did not identify population and building density standards. In addition, the circulation element was legally decient because it was not correlated with the land use element (Government Code Section 65302 (b)).
(3) The housing element was inadequate because it did not include standards and plans for improving housing and for the provision of adequate sites for housing. It also lacked adequate provisions for the housing needs of all economic segments of the community. Regardless of whether the Housing Element Guidelines prepared by the Department of Housing and Community Development were advisory or mandatory, the lower court properly relied on them in determining the adequacy of the housing element. The element failed this analysis because it did not have a comprehensive problem solving strategy for the county's housing needs or a longterm projection of prospective needs for marketrate housing.
(4) The noise element was inadequate because it contained no noise exposure information, and the county failed to monitor areas deemed noise sensitive. The county's argument that the existing element was adequate for a quiet rural county was not persuasive to the Court, since the statutory test is not subjective or geographical.
(5) It was not necessary to name all subdividers in the county in the suit because they did not meet the legal requirements for indispensable parties.
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(6) An injunction against new development was an appropriate remedy where the county failed to adopt an adequate general plan. However, the county could not be enjoined from approving nal maps that were in substantial compliance with a tentative map approved prior to the injunction and not subject to court challenge. Under Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, there is a ministerial duty to approve such maps and, thus, the county could not be enjoined.
(7) An injunction prohibiting the processing of zoning changes and certicates of compliance was proper. The operation of statutes, which provide that various projects are deemed approved if not acted upon in a specied time, did not have to be enjoined from action. These statutes were inoperative because the county was not authorized by law to act on applications until it completed its general plan.
ARNEL DEVELOPMENT COMPANY V. CITY OF COSTA MESA
126 Cal.App.3d 330; 178 Cal.Rptr. 723
(California Court of Appeal, 1981)
The Facts: Arnel Development Company (Arnel) proposed to construct 127 singlefamily residences and 539 apartment units on a 50acre parcel located in Costa Mesa. Under the Costa Mesa General Plan, 8.5 acres of the property were designated lowdensity residential and the balance of the Arnel property and two adjacent parcels were designated medium -density residential. In November 1976, the city approved a specic plan for development and rezoned the Arnel property to planned development residentiallow density and planned development residential-medium density. A nal development plan and a tentative subdi vision map were approved in July 1977. The adjacent properties retained their existing general agricultural zoning.
Shortly after the city's action, the North Costa Mesa Homeowners Association circulated an initiative petition to rezone the Arnel property and the two adjacent parcels to singlefamily residential. The initiative qualied for the ballot, and the voters approved it. Thereafter, the city refused to process Arnel's applications for a nal subdivision map and building permits.
Arnel and South Coast Plaza Properties, owners of the adjacent properties, sought to have the initiative declared invalid, arguing that the rezoning of specic, relatively small parcels was an adjudicative, rather than a legislative act, and thus could not be enacted by initiative. They also claimed that the zoning by initiative was invalid on other grounds.
The California Supreme Court ruled for the city ((1980) 28 Cal.3d 511), holding that:
(1) The enactment or amendment of a zoning ordinance is a legislative act, regardless of the size or ownership of the land involved. Legislative acts may be enacted by initiative. Approvals of subdivisions, variances and conditional use permits are adjudicative in nature, and cannot be accomplished by initiative. Under both the United States and California Constitutions the use of initiatives to adopt zoning changes is not a violation of the due process clause.
(2) An initiative may be declared invalid because: it is arbitrary or unreasonable; it bears no reasonable relationship to the regional welfare; or it deprives property owners of substantially all use of their land.
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(3) Zoning changes, even those adopted by initiative, must conform to the general plan (Government Code Section 65860). This protects the public interest in rational and orderly land use planning.
The Supreme Court remanded the case to the California Court of Appeal to address the other arguments made by Arnel and South Coast Plaza Properties contesting the validity of the initiative. At the Court ofAppeal, the plaintiffs reasserted their original claim that the zoning action was arbitrary and discriminatory.
The Holding: The California Court of Appeal ruled for Arnel, holding that:
(1) The initiative ordinance rezoning the properties was arbitrary and unreasonable and, therefore, invalid. In contrast to the zoning adopted in 1976 after eighteen months of planning and thirty public hearings, the zoning initiative was not based on any signicant change in circumstances but enacted for the sole purpose of thwarting the Arnel project and the construction of multifamily housing.
(2) The rezoning from general agricultural to singlefamily residential use of the properties adjacent to the Arnel property was also arbitrary and unreasonable. The zoning initiative was not based on appropriate planning or land use criteria, but was enacted for the sole purpose of precluding any future development that would include moderateincome apartments.
(3) The zoning initiative was invalid because it failed to meet the regional welfare test set out by the California Supreme Court in Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore (1976) 18 Cal.3d 582. By precluding development of multi-family residences in the area, the initiative ordinance did not effect a reasonable accommodation of the competing interest on a regional basis and was, therefore, an invalid exercise of the police power.
Further Proceedings: The Court of Appeal remanded the case to the trial court for further consideration of the remaining issues.
KARLSON V. CITY OF CAMARILLO
100 Cal.App.3d 789;161 Cal.Rptr. 260
(California Court of Appeal, 1980)
The Facts: The City of Camarillo amended its land use element in October 1977, changing a 132acre parcel from agricultural use (adopted in 1975) to lowdensity housing use (335 units). The parcel was located south of a freeway, with a mobilehome park to the west, a high school to the north (across the freeway), and an industrial park to the southeast.
The city also amended its land use element in December 1977 for a second parcel of 10 acres, changing it from agricultural to commercial use. It also was located south of the freeway, on the south and east side of the larger parcel. Developers proposed using it for a commercial fruit stand designed to serve tourists. Except for the larger parcel, it was surrounded by agricultural land, which would remain agricultural. A third amendment for another parcel was considered but rejected by the city council.
Mr. Karlson, a nonlawyer representing himself, sued for a writ of mandate alleging: (1) the city failed to comply with the "internal consistency" requirement in Government Code Section 65300.5 because the two amendments were inconsistent with general plan policies
Cases of the CALIFORNIA COURT OF APPEAL
on leapfrog development and conversion of agricultural lands; (2) the city violated the former Government Code Section 65361 (now Government Code Section 65358) by exceeding the requirement that the general plan not be amended more than three times per year; and, (3) the city violated Government Code Section 65356 in that the city council had not returned the set of general plan amendments to the planning commission after deleting one amendment and before adopting the other two.
Holding: The Court of Appeal ruled for the city, holding that:
(1) Amendment of a general plan, regardless of the size or ownership of the parcel affected, is a legislative act. Therefore, the appropriate standard for judicial review is Section 1085 of the Code of Civil Procedure, which limits the scope of review to an examination of the proceedings before the local agency to determine whether its actions were arbitrary or capricious or entirely lacking in evidentiary support or whether it has proceeded in the manner prescribed by law.
(2) The internal consistency requirement does not modify this scope of review. Section 65300.5 is a general statement of policy and legislative intent that should be considered in executing general plans and amendments. A difference of opinion over changes in the general plan does not warrant a court's rejection of a city's action if opposing viewpoints were presented, extensively considered, and on the basis of the evidence, the city council selects one of the alternatives. Karlson had not shown that the city acted improperly.
(3) An EIR need not show conformity between the proposed project and the general plan.
(4) Section 65361 limits the number of occasions on which amendments to a general plan may be considered to three per calendar year. There is no limit on the number of parcels that can be considered or amended on each of those occasions.
(5) A local agency is not required to return the entire package of general plan amendments to the planning commission when a proposed change for one parcel is deleted from the package of amendments and proposals for other parcels are approved, as long as the parcels are totally independent of each other so they can be considered without regard to the deleted parcel.
FRIENDS OF 'B' STREET V. CITY OF HAYWARD
106 Cal.App.3d 988
(California Court of Appeal, 1980)
The Facts: The City of Hayward approved a city public works project to widen a street and construct a bridge. The project would have removed existing residences and businesses as well as 153 mature trees. The city prepared a negative declaration and approved the project.
Friends of "B" Street, a citizens' group, led suit against the city seeking to set aside the decision to improve "B" Street. The plaintiffs led a writ of mandate to invalidate the city's adoption of the negative declaration. The group also sought an injunction on the grounds that the public works project was inconsistent with the city's general plan, and that the city's general plan lacked a noise element. The suit also made a claim for attorney fees.
Cases of the CALIFORNIA COURT OF APPEAL
The Holding: The California Court of Appeal ruled for the Friends of "B" Street, holding that:
(1) Under the Code of Civil Procedure and the "substantial benet" rule, the plaintiffs could recover attorney fees.
(2) In requiring cities and counties to prepare general plans, it must have been the Legislature's intent that all local decisions involving future growth, including decisions by a city to undertake public works projects, be consistent with the general plan.
(3) An injunction against a public works project is an appropriate remedy until the local government adopts a complete and adequate general plan.
(4) Any appropriate legal or equitable remedy, including an injunction or writ of mandate, is available as relief for the failure of a general plan to contain a mandatory element.
MOUNTAIN DEFENSE LEAGUE V. BOARD OF SUPERVISORS
OF SAN DIEGO COUNTY
65 Cal.App.3d 723; 135 Cal.Rptr. 588
(California Court of Appeal, 1977)
The Facts: Lincoln Martin proposed to develop 1,000 acres of wooded hilly land east of San Diego, by building a lodge, restaurant, recreational area, and 100 homesites. Before the development permit could be approved, an amendment to the existing general plan was required. This amendment was approved by the San Diego County Board of Supervisors simultaneously with the approval of a private development plan.
The Mountain Defense League sued to direct the Board to deny Martin permission to proceed with the proposed project and to rescind the amendment of the San Diego County General Plan. They argued there was insufcient evidence to support the amendment, no ndings had been made, and the amendment violated various provisions of the Planning and Zoning Law.
The Holding: The California Court of Appeal ruled for the County on all issues except required ndings, holding that:
(1) No prior law had set the standard of judicial review for general plan amendments. If the action was legislative, then the agency's decision would be upheld unless it was arbitrary or capricious. If the action was quasijudicial, the decision would be upheld if supported by ndings based on substantial evidence (unless the administrative decision affected a fundamental vested right acquired by the plaintiff, in which case the trial court could exercise its independent judgment).
(2) In the case under consideration, the agency amended the general plan at the same time it took the quasijudicial action of approving a private development plan. When an agency chooses to dispose simultaneously of two legally required functions in one decision, review of that decision must follow the more stringent standard. Here, approval or denial of a private development permit was a quasijudicial act subject to the test of the substantial evidence. In this case, there was substantial evidence to support the Board's decision.
Cases of the CALIFORNIA COURT OF APPEAL
(3) The plaintiffs had no fundamental vested right in having the property developed according to a particular design, or in conservation and preservation of open space, or in discouraging noncontiguous development. The independent judgment test was therefore inapplicable.
(4) If amending a general plan is a legislative function, there would be no need for ndings to be made by the legislative body, unless required by statute. Because two decisions were made simultaneously, only one set of ndings was necessary if it covered all requirements of both statutes. Since no ndings were made, the case must be remanded to the Board to make the necessary ndings.
(5) This amendment to the general plan did not violate the Planning and Zoning Law. The amendment was not piecemeal, ad hoc, or in violation of the requirement that the general plan be comprehensive. The fact that the Legislature did not, at the time of the actions in question, limit the frequency of amending the general plan, while it now limits amendments to three times per year, showed that the Legislature did not expect the County to view the general plan as a theoretical planning document which was to be reviewed only every couple of years. [Note: Section 65358 of the Government Code now states that the mandatory elements of the general plan may be amended not more frequently than four times per year.] The general plan is not a nal document, never to be changed, since amendments may be made when "in the public interest." Also, the Legislature placed no limits on the acreage involved in an amendment.
(6) The Ofce of Planning and Research's General Plan Guidelines are advisory only, not mandatory.
SAVE EL TORO ASSOCIATION V. DAYS
74 Cal.App.3d 64; 141 Cal.Rptr. 282
(California Court of Appeal, 1977)
The Facts: The City of Morgan Hill adopted an "openspace element" in April 1973. In October of that year, it adopted a policy that all lands above the 800foot elevation on El Toro Mountain would remain in permanent open space. In 1976, the city approved nal subdivision maps for 52 acres of land below the 800foot elevation, created an assessment district to fund the subdivision's improvements, and awarded a contract to construct them.
A citizen's group, Save El Toro Association (El Toro), sued the city council to halt the proposed construction and sale of lots and to obtain an order annulling the approval of the maps and the resolution creating the district. El Toro alleged that the city's actions were unlawful because any of its actions which restricted the use of open space land must be consistent with the openspace plan. They further charged that the city had not adopted a legally valid openspace element or general plan which an openspace element is a part.
The Holding: The California Court of Appeal ruled for El Toro, holding that:
(1) For the openspace element to be adopted as a part of the general plan, there must be a general plan. Although the city offered a number of ordinances that it claimed fullled the statutory requirements for a general plan, these ordinances did not approach satisfying the requirements of state law. Of the nine elements then required, the plan lacked ve. As the
Cases of the CALIFORNIA COURT OF APPEAL
city did not have a general plan, it could not have adopted an openspace element as part of that plan.
(2) The city's existing ordinances did not constitute an openspace plan. Without an inventory of available openspace resources, there cannot be a plan as contemplated in the Open Space Lands Act (Act). Instead, only isolated, uncoordinated projects would occur the type of development the Act specically intended to prevent. Also, Morgan Hill had failed to adopt an openspace zoning ordinance consistent with the openspace plan as required by the Act. As the city had not adopted a valid openspace plan, it could not take any action to acquire, regulate, or restrict openspace land or to approve a subdivision map.
DURAN V. CASSIDY
28 Cal.App.3d 574; 104 Cal.Rptr. 793
(California Court of Appeal, 1972)
The Facts: The City of Visalia approved a master plan for a golf course as part of the Visalia Air Park. The area had been annexed by the city after the county had amended its recreation element to allow a park to be constructed on the site. City voters led the requisite number of valid signatures to qualify an initiative that would have prohibited the city from owning or operating a public golf course at the Airpark. However, City Clerk Cassidy refused to accept the initiative petition for placement on the ballot. Duran, one of the petitioners, led suit seeking to compel the city clerk to accept the petition and place the initiative on the ballot.
The Holding: The California Court of Appeal ruled against the city, holding that:
(1) The city council's decision to own and operate a golf course at the Air Park was a legislative act subject to initiative.
(2) Assuming that the golf course was included in the city's general plan at the time of the council's decision, the electors of the city have the right to amend the plan by the initiative process.
(3) The adoption or amendment of a general plan is a local legislative matter. A charter city, therefore, may follow its own procedures for adoption or amendment rather than those prescribed by general law.
(4) Any conict between the charter's procedural requirements governing adoption of a general plan and those governing the power of initiative can be reconciled by giving the power to adopt or amend a plan to both the city council and the people through the initiative process.
OPINIONS OF THE CALIFORNIA ATTORNEY GENERAL
OPINIONS OF THE CALIFORNIA
ATTORNEY GENERAL
67 OPS.CAL.ATTY.GEN. 75 (March 7, 1984)
Subject: City and County General Plan Diagrams
Requested By: Senator Robert Presley
Question:
Is a parcelspecic map required for the land use element of a general plan adopted by a city or county?
Conclusion:
A parcel specic map is not required for the land use element of a general plan.
Section 65302 of the Government Code states in part:
The general plan shall consist of a statement of development policies and shall include a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals.
In construing the language of Section 65302, there are several guiding principles of statutory construction. These include: to examine the legislative history of the statute and the historical circumstances of its enactment, to ascertain legislative intent by examining the contextual language of the statute, and the harmonization of the statutes both internally and with each other. It is important to note that the Legislature used the word "diagram" in Section 65302 rather than "map." The Legislature recodied the stautory requirements for general plans in 1965. At that time, it substituted the word "diagram" for the term "map" previously used.
When the Legislature has used the term "map," "it has required preciseness, exact location, and detailed boundaries." A diagram, on the other hand, is dened in Webster's as "a graphic design that explains rather than represents: a drawing that shows arrangement and relations."
Various commentators, including the Director of the Ofce of Planning and Research, have concluded that the purpose of the general plan is to provide general guidance for land use decision making. A specic mapping of land uses should not be necessary for this purpose if the plan's policies are detailed in reecting community objectives for the spatial relation ships among land uses.
Use of a parcelspecic map can hinder the making of logical connections between various land use decisions and the community's goals and objectives as presented in the plan text. This may lead to over reliance upon a precise map in place of the plan as an integrated whole.
This does not mean, however, that the owner of a specic parcel of land may not be able to determine the range of possible uses of his or her property. Although the diagram locations are general, the plan's policies should be detailed enough when applied to a particular parcel to identify the possible uses.
OPINIONS OF THE CALIFORNIA ATTORNEY GENERAL
66 OPS.CAL.ATTY.GEN. 258 (August 10, 1983)
Subject: General Law County's General Plan
Requested by: County Counsel of Mendocino County
Questions:
(1) May a general law county's general plan be amended by initiative?
(2) How many changes may be made in a general law county's general plan each time it is amended?
Conclusion:
(1) The general plan of a general law county may be amended through the initiative process. Adoption of a general plan is a legislative act pursuant to Section 65301.5 of the Government Code. The California Constitution, Article 2, Section 11 reserves to the electorate the initiative process for legislative matters. Associated Homeowners v. City of Livermore (1976) 18 Cal.3d 596 that the notice and hearing requirements that are a part of the Board of Supervisors' ordinance consideration process are not required of initiatives.
(2) There is no limitation on the number of changes which may be made to a mandatory element each time that the element is amended, but under Government Code Section 65361 no mandatory element may be amended more frequently than three times per year. This opinion is put forward in the case of Karlson v. Camarillo (1980) 100 Cal.App.3d 789. [Note: The provisions of Section 65361 have been located to Government Code Section 65350 and now state that the mandatory elements of the general plan may be amended four times yearly.]
59 OPS.CAL.ATTY.GEN. 129 (March 16, 1976)
Subject: Approval of Subdivision of Land
Requested By: Senator Petris
Question:
To what degree can cities utilize the amendments and additions to the Subdivision Map Act and to the Government Code enacted by Statutes of 1971, Chapter 1446 (A.B. 1301, 1971), to reject the subdividing of land for residential purposes?
Conclusion:
Cities and counties may utilize the amendments and additions to the Subdivision Map Act and to Government Code enacted by Statutes of 1971, Chapter 1446 (AB 1301) to condition and to reject the subdivision of land to a greater degree than previously by, inter alia, requiring ndings that the environment will not be substantially damaged; that the subdivision is consistent with applicable general or specic plans; and by authorizing ordinances prescribing greatly expanded design and improvement standards as a condition of subdivision map approval.
OPINIONS OF THE CALIFORNIA ATTORNEY GENERAL
58 OPS.CAL.ATTY.GEN. 21 (January 15, 1975)
Subject: City and County Zoning Ordinances and Adopted General Plans
Requested By: Director, Ofce of Planning and Research
Questions:
(1) Does Government Code Section 65860(a) require that a city or county zoning ordinance be consistent with each of the elements of the general plan as set forth in Government Code Section 65302?
(2) If so, what constitutes consistency with a general plan and its elements?
(3) What action may be taken against a city or county, if:
(a) A city or county zoning ordinance is inconsistent with the general plan or any general plan element as set forth in Government Code Section 65302;
(b) Any of the general plan elements required by Government Code Section 65302 to be adopted by the city or county within a certain time have not been adopted by the prescribed date?
(4) What is the difference between the Business and Professions Code Sections 11549.5 and 11526(c), and does Government Code Section 65860(a) and (b) have any impact on these Subdivision Map Act provisions?
Conclusions:
(1) Government Code Section 65860(a) requires a city or county zoning ordinance to be consistent with the adopted general plan and with each adopted general plan element required by Government Code Sections 65302 and 65302.1 or enacted pursuant to Government Code Section 65303.
(2) The guidelines for consistency with the general plan are set forth in Government Code Section 65860.
(3) (a) Section 65860(b) of the Government Code authorizes a resident or property owner of a city or county to bring an action to compel a city or county to enact a zoning ordinance which is consistent with a general plan of a city or county. Such an action would arise when the zoning ordinance is inconsistent with an adopted general plan, or an adopted general plan does not include all required general plan elements.
(b) In such a mandate action where no general plan or its required elements has been adopted, a court would probably retain jurisdiction to compel such adoption in order to "enforce compliance" with the requirement that a zoning ordinance be consistent with the general plan.
As a method of enforcing compliance, the court could also enjoin the issuance of building permits or the taking of other action under a zoning ordinance until a general plan with which the zoning ordinance is to be judged for consistency has been adopted.
General mandamus principles allow the Attorney General and qualifying citizens to bring an action to compel the adoption of a general plan or any one of its required, but not yet adopted, elements or, if there is an adopted general plan, to require the local legislative body to adopt a zoning ordinance consistent with that general plan.
In any event, a resident, or property owner, or the Attorney General could bring a separate action to compel adoption of a general plan or of the elements required by Government Code
OPINIONS OF THE CALIFORNIA ATTORNEY GENERAL
Section 65302, as well as a consistent zoning ordinance.
(4) While both Sections 11549.5 and 11526(c) of the Business and Professions Code concern the same subject matter, there is a difference in that Section 11549.5 requires a much broader scope of inquiry than does Section 11526(c). Government Code Section 65860 has a substantial indirect impact on the provisions of the Subdivision Map Act insofar as both tentative and nal subdivision maps, in common with zoning ordinances, must be consistent with a general plan and required elements not later than January 1, 1974. [Note: The provisions of former Business and Professions Code Sections 11549.5 and 11526 (c) are now found at Government Code Sections 66473.5 and 66474. They now apply to tentative maps or parcel maps for which tentative maps are not required.]
56 OPS.CAL.ATTY.GEN. 404 (September 26, 1973)
Subject: Adoption of Zoning Ordinances and Consistency with the General Plan
Requested by: County Counsel, County of Nevada
Questions:
(1) Does Government Code Section 65860 require that Nevada County bring its zoning ordinances into conformity with its general plan by January 1, 1974?
(2) If it is mandatory that Nevada County's zoning ordinances be consistent with its general plan by January 1, 1974, what are the penalties, if any, for the County's failure to comply by that date?
(3) Are environmental impact reports (EIRs) required for each concise zoning ordinance presently being processed under the County Zoning Enabling Ordinance?
(4) Are environmental impact reports required for rezoning?
Conclusions:
(1) Section 65860 subdivision (a) Government Code requires that by January 1, 1974, the zoning ordinances of Nevada County be consistent with the adopted general plan.
(2) Section 65860 subdivision (b) Government Code grants standing to residents or property owners to bring litigation to compel compliance with Section 65860 subdivision (a) of the Government Code. Analysis of the relief the courts may grant under this section will be forthcoming in another pending formal opinion to be issued in the near future.
(3) Pursuant to Public Resources Code Sections 21080 subdivision (a) and 21151, the enactment and amendment of zoning ordinances must be preceded by preparation of an environmental impact report if the proposed ordinance may have a signicant effect on the environment. This conclusion applies to zoning ordinances which may have been adopted during the moratorium period of December 5, 1972, to April 5, 1973.
(4) Rezoning is merely a phrase used to connote the amendment or enactment of different zoning regulations for particular areas. As such, proposed rezoning does require an environ mental impact report pursuant to Public Resources Code Sections 21080 subdivision (a) and 21151 if the proposed enactment of amendment may have a signicant effect on the environment.