The California Court of Appeal for the Fourth District found that a California charter city is exempt from the statutory requirements for consistency between its General Plan and Specific Plans and zoning ordinances, unless an express, unequivocal statement of intent in the city charter requires adoption of the consistency requirement. [The Kennedy Commission et. al., v. City of Huntington Beach et al., ___Cal.App.5th___, Case No. E065358 (4th Dist. Nov. 20, 2017).]

Background

Under California’s Housing Element Law (Gov. Code, § 65580 et seq.), the City of Huntington Beach and the City Council of Huntington Beach (collectively: the City) was required to pass, as part of its General Plan, a housing element that makes adequate provisions for the housing needs of all income groups, including accommodating the local government’s share of the Regional Housing Need Allocation (RHNA). The California Department of Housing and Community Development (HCD) approves the housing element. The City adopted a General Plan. The General Plan included a housing element, which set forth the City’s plan to comply with the HCD requirement for affordable housing. A large part of the housing element adopted in the General Plan provided that development of affordable housing would occur in the Beach Edinger Corridors Specific Plan (BECSP) area, which allowed up to 4,500 residential units in the Beach Erdinger area. In 2015, the City passed an amended BECSP, which significantly reduced the number of housing units that could be developed in the BECSP, reducing the allowable units to 2,100. As a result, the amendment of the BECSP to cut allowable housing by more than half resulted in a 350-unit shortfall in the affordable units assumed in the housing element.

The Kennedy Commission, William Adams and Jason Puloe (collectively: Kennedy) filed a complaint alleging in the first cause of action that the amended BECSP was inconsistent with the housing element. Kennedy argued that the amended BECSP was void as it was not consistent with the housing element in the General Plan. Kennedy claimed the entire BECSP amendment should be invalidated. The trial court applied Government Code § 65454, which requires a Specific Plan to be consistent with the General Plan, including its housing element, and declared the amended BECSP was void. The City appealed the grant of a petition for writ of mandate entered by the Superior Court of Los Angeles County in favor of Kennedy invalidating the City’s amendment to the BECSP.

The Court of Appeal’s Decision

On appeal the City argued that, because it was a charter city, it was exempt from the requirement that its Specific Plans be consistent with its General Plan. The City referenced the exemption for charter cities. Government Code § 65700, subdivision (a), leaves the nature of the General Plan amendment process entirely to the discretion of charter cities. The Court of Appeal agreed with the City, holding that the consistency requirement was inapplicable because Huntington Beach was a charter city.

The Court of Appeal rejected Kennedy’s argument that the City, in its own zoning ordinance, had imposed the consistency requirement. Although the zoning ordinance contained language that could be interpreted to require consistency between Specific Plans and the General Plan, the Court of Appeal reasoned that only an express, unequivocal statement in the City’s charter was sufficient to impose a consistency requirement notwithstanding the exemption for charter cities. To that argument was cited § 103 of the Huntington Beach charter which provides:

• The City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter or in the Constitution of the State of California.

The Court of Appeal found it clear from this language that the City did not intend to adopt the Government Code in its charter. Thus, since the charter itself contained no such express, unequivocal statement, the City remained exempt from any requirement that the BECSP be consistent with the housing element of the General Plan.

Conclusion and Implications

What this case clearly provides for is a clarification of the exemption for charter cities provided for under Government Code § 65700. The Court of Appeal’s decision makes clear that a charter city is exempt from the statutory requirement that its Specific Plans and zoning ordinances be consistent with its General Plan absent an express, unequivocal statement of intent in the city charter to adopt the consistency requirement.

(Parissa Florez, Thomas Henry)