Tag: General Plan Consistency

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

In Atwell v. City of Rohnert Park, No. A151896, A153011, (Sept. 26, 2018), __Cal.App.5th__, the First District Court of Appeal upheld a lower court’s ruling in favor of the respondent city on a motion for judgment on the pleadings, finding that petitioner’s claims were barred by the doctrine of res judicata. The First District’s opinion, not originally slated for publication, held that subsequent individual petitioners were in privity with the Sierra Club in a prior suit, that the same claim of inconsistency with the general plan could have been raised in that prior suit, and the public interest exemption to the doctrine of res judicata did not apply in the circumstances of the instant case.

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

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

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

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

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

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

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

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

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

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

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

High Court Decides that Voters Can Challenge Zoning Ordinance by Referendum, Even When It Results in a More Prolonged Period of Inconsistency Between Zoning Ordinance and General Plan

In City of Morgan Hill v. Bushey, (2018) No. S23042 __Cal.5th__, the California Supreme Court upheld the decision of the court of appeal, and ruled that voters can challenge a zoning ordinance by way of referendum, even if this results in a more prolonged period of inconsistency between the zoning ordinance and general plan, at least when local government has other means available to them to make the zoning ordinance and the general plan consistent. Furthermore, the referendum process does not violate a Planning and Zoning Law provision (Gov. Code, § 65860) which mandates that inconsistencies between a zoning ordinance and a general plan be reconciled within a “reasonable time.” The court remanded the matter back to the trial court to resolve whether there were other means available to the local agency to make the general plan consistent with the referendum, should it be successful. Justice Chin filed a brief concurrence.

In making this ruling, the court expressly disapproved of deBotarri v. City of Norco (1985) 171 Cal.App.3d 1204 and cited with approval the reasoning of the recently decided Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657.

Factual and Procedural History

In November 2014, the City of Morgan Hill amended its general plan to change the land use designation of a vacant parcel from industrial to commercial, in order to allow the applicant to develop a hotel on the site. The zoning designation in the zoning code, ML-Light Industrial, remained unchanged. In April 2015, the city council voted to approve a zoning change for the site from ML-Light Industrial to CG-General Commercial, to make the zoning consistent with the amended General Plan. General Commercial is one of 12 potential commercial zoning designations in the city. Shortly afterwards, voters successfully petitioned to put forward a referendum challenging the zoning ordinance change. However, the city council directed the city clerk to discontinue processing the ordinance, believing it would make the General Plan and zoning ordinance inconsistent. In 2016, the council placed referendum on the ballot, and petitioned for a writ of mandate to have the referendum invalidated.

The trial court found for the city, relying on deBotarri for the proposition that a referendum is invalid when it would enact a zoning ordinance that is inconsistent with the general plan.

The Sixth District Court of Appeal reversed in a published decision, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The court of appeal expressly disagreed with deBotarri’s holding that referendums are always invalid if they reject a zoning ordinance which was enacted by the local government in order to bring a property’s zoning into compliance with the jurisdiction’s general plan. The California Supreme Court granted review.

The Supreme Court Decision

The California Constitution reserves the power of referendum for the people. It allows voters to approve or reject statutes, or parts of statutes, including enactments by local government. This power is subject to a “limited preemption” by the Legislature, and can only be abrogated by a “definite indication” or “strong showing” that preemption was intended.  Local control over land use is subject to the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), which mandates that the land use element of a general plan must be consistent with local zoning ordinance, and that if an inconsistency exists, that it be reconciled within a “reasonable time” (Gov. Code, § 65860). The statutory scheme does not define “reasonable time” or give benchmarks for determining when the passage of time becomes unreasonable. To avoid the uncertainty inherent in such inconsistencies, the Government Code strongly encourages simultaneous general plan amendments and zoning code changes, although this is not required.

The core question is whether the Legislature, in enacting Government Code section 65860, intended to preempt the power of referendum, such that voters would be prohibited from placing a referendum on the ballot that, if successful, would prolong or create a create an inconsistency between the zoning and the general plan.  A related question is whether a “reasonable time” to bring a general plan and a zoning ordinance into harmony can include the time to hold a referendum, and, if successful, pursue another means of making the general plan and zoning consistent.

The court accepted the petitioner’s contention that, generally, local voters can exercise their referendum power without creating a conflict with section 65860, at least when there are other zoning designations available that would be consistent with the general plan. In announcing this rule, the court rejected defendant’s supposition that a successful referendum “revives” an out-of-compliance zoning ordinance, because a referendum does not enact a law. Rather, a successful referendum merely rejects an amendment before it takes effect. Here, even though the referendum sought to overturn the new, consistent zoning designation, the referendum would not be invalid because the original designation was valid when it was enacted (that is, the general plan amendment created the inconsistency, a situation which the Government Code permits, for a “reasonable time”).

The court acknowledged that a referendum such as this creates or prolongs a period of inconsistency between a general plan and the applicable zoning, but the Government Code allowed for such periods “to ensure an orderly process of bringing the regulatory law into conformity…”(quoting Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 546 (Lesher)). Relatedly, while the “reasonable time” allowed for city or county to conduct an “orderly process” is not defined, the court reasoned that the term was context-dependent, and, given the court’s duty to protect the referendum power, a “reasonable time” within the meaning of section 65860 must include the time necessary to bring at least one referendum challenge, and to rectify the inconsistency between the zoning ordinance and the general plan in a manner consistent with the referendum.

Answering the questions before it as it did led the court to expressly disapprove of the reasoning in deBottari and its progeny, because, although Government Code section 65860, subdivision (a) voids enactments, including initiatives from creating zoning ordinances inconsistent with the general plan, a referendum that creates a temporary period of inconsistency falls within the exception in subdivision (c) of that statute. The court also rejected the city’s argument that allowing the referendum could create a period of inconsistency lasting months if not years, finding that its duty was to harmonize, to the extent possible, the government code with the referendum power. Moreover, the inconsistency could be avoided altogether by amending the general plan and zoning code simultaneously, as suggested in the Government Code itself.

Consistent with its general rule, the court provided guidance on the types of tools that local governments have available to maintain consistency. Here, the city has twelve potential other commercial zoning designations, six of which allow hotels. The city and the petitioners disagreed as to the extent that the other zoning designations were viable for this site, but that issue was never addressed by the trial court. Nor did either party fully address the possibility that the city could create a new zoning designation that would be compliant with the general plan as amended, if no current zoning options were suitable. For these reasons the court remanded the case back to the trial court to determine whether it would be impossible for the city to make the zoning ordinance and general plan consistent.

The court also stated that the city could amend its general plan to make it consistent with zoning ordinance, and the referendum. The court noted that, in Lesher, supra, 52 Cal.3d 531, it had determined that an initiative instituting an invalid zoning ordinance cannot be used to alter a general plan, but the question of whether a referendum would be void if the city or county’s only option was to amend the general plan had not been answered. Nor did the court consider whether a local government could show that it would be futile to amend the zoning code, because no zoning designation consistent with the general plan amendment would be consistent with the intent of the referendum.

Justice Chin’s brief concurrence noted that a remand might not have been necessary, given that there appear to be other designations available. But, he acknowledged that the city could still challenge the validity of the referendum, if the city could establish that it would be impossible to make the general plan and zoning code consistent, should the referendum succeed.

Sara F. Dudley

Sixth District Court of Appeal Upholds Trial Court’s Use of Interlocutory Remand on Determination Regarding General Plan Consistency

The Sixth District Court of Appeal held in the partially-published opinion, Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, that general plan consistency is not a CEQA issue, and therefore mandate procedures for CEQA violations are inapplicable.

The Trial Court Proceedings

In 2012, Monterey County certified an EIR for an 11-acre shopping center project. The county’s general plan requires a specific finding of “a long-term sustainable water supply,” but in approving the project the board of supervisors determined only that the project had an “adequate long-term water supply.” After the county approved the project, Highway 68 Coalition filed a petition for writ of mandate challenging approval of the project on both CEQA and general plan consistency grounds. The trial court rejected the CEQA claims, but issued an order of interlocutory remand to the county to clarify whether there was a long-term sustainable water supply using the specific language mandated by a general plan policy. The board of supervisors held a hearing on remand and made the specific findings required by the general plan.

Highway 68 then filed, and the court granted, a motion for leave to file a supplemental writ petition regarding the county’s subsequent findings. Highway 68 argued that the county had violated procedural due process and had violated CEQA during the remand proceedings. The trial court denied Highway 68’s claims, finding that the county’s procedures on remand had not violated due process, and substantial evidence supported the board’s findings regarding water supply. The trial court lifted the prior stay and denied the petition for writ of mandate.

The Appeal

On appeal, Highway 68 argued that the trial court erred in issuing interlocutory remand in a CEQA writ of mandate case; the county violated due process requirements on interlocutory remand; and the EIR’s analysis of consistency with the general plan, traffic analysis, and segmentation of environmental review was insufficient under CEQA. The Court of Appeal found that because the issue of whether a proposed project is consistent with a county’s general plan is not a CEQA issue, CEQA’s mandate procedures do not apply. Thus, the court held that because this was a single, discrete issue of general plan consistency, which is reviewed by ordinary mandamus, the trial court did not err when it ordered interlocutory remand. In addition, the court held that Highway 68 did not meet its burden to show, based on the evidence in the record, why the board’s determination was unreasonable. Thus, the court upheld the finding of general plan consistency and affirmed the trial court’s denial of the petition for writ of mandate.

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

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

Background

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

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

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

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

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

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

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

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

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

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

The Supreme Court’s Decision

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

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

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

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

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

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

Conclusion

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