By Nedda Mahrou, Esq.
This action arose from a challenge by several property owners to the Richmond, California city council’s adoption of an initiative amending the General Plan to prohibit residential development on a stretch of hillside land. The General Plan amendment made the General Plan internally inconsistent because the land use element of the General Plan authorized considerable residential development in the initiative area, while the initiative forbade it. The First District Court of Appeal reversed the trial court’s decision to vacate the city’s adoption of the initiative, finding that the proper remedy was to bring the General Plan into compliance with the General Plan statute.[ Denham, LLC v. City of Richmond, ___Cal.App.5th___, Case No. A154759 (1st. Dist. Oct. 25, 2019).]
Factual Background
In 2017, the city council for the City of Richmond adopted an initiative that was passed by the city’s voters in the November 2016 election. The initiative purported to amend the city’s General Plan by limiting development and land uses in the “Richmond Hills Initiative Area,” much of which includes property designated as “Hillside Residential” in the General Plan. The Hillside Residential classification is a residential land use classification allowing attached and detached single family housing. The initiative added provisions to the open space element of the General Plan to prohibit all residential development in the initiative area, unless a court finds the prohibition unconstitutional. However, no changes were made to the land use element’s definition of “Hillside Residential” or to the maps applying this classification to most of the initiative area.
Property owners in the initiative area filed a writ of mandate and complaint for damages challenging the initiative on various grounds. The trial court concluded that the initiative rendered the city’s General Plan internally inconsistent, and directed the city to vacate its adoption of the initiative. This appeal followed.
The Court of Appeal’s Decision
General Plan Amendments Via the Initiative Process
The Court of Appeal began by noting that General Plan amendments made through the initiative process, such as the one here, do not have the benefit of procedures that are normally followed when a city amends its General Plan. The initiative process bypasses procedural steps such as public hearings, consultation with public agencies, and written findings. Nevertheless, a General Plan amendment adopted by initiative is still subject to the same constitutional limitations and rules of construction as are other statutes. Thus, a General Plan amendment adopted by initiative may not be internally inconsistent, and like any other General Plan amendment, it must not cause the General Plan itself to become internally inconsistent.
The court agreed that the General Plan was rendered internally inconsistent by the initiative. Here, the initiative on its face created an inconsistency in the General Plan because the land use element maps placed the property at issue in the Hillside Residential classification, which it still defined as including single family housing on subdivided parcels. But the initiative by its terms amended a different element of the General Plan—the open space element—to prohibit residences in the initiative area. The initiative did not amend either the text or the maps in the General Plan’s land use element to show a different designation for the property at issue, or to describe the Hillside Residential designation in a way that was consistent with the initiative. So, the land use element authorized considerable residential development in the initiative area, whereas the initiative did not allow any such residential uses. Thus, different elements of the General Plan described incompatible uses for the same property.
The Remedy
The Court of Appeal disagreed with the trial court’s ruling that directed the city to vacate its adoption of the initiative. The court held that once the lower court found that the amended General Plan violated Government Code § 65300.5’s requirement of internal consistency, it should have ordered the city to bring its General Plan into compliance with the statutory requirements. The court noted that the parties did not cite any case deciding whether a court may direct a city to correct inconsistencies in its General Plan when the inconsistency is created by an initiative amending the existing plan. Here, the city could for example, amend the land use element of the General Plan in a manner consistent with the initiative, or could submit a measure to the voters to rescind or amend the initiative as to cure the inconsistency.
Therefore, the Court of Appeal reversed the trial court’s judgment and ordered the lower court to issue a new writ of mandate directing the city to cure the inconsistency in its General Plan in a manner consistent with the Court of Appeal’s ruling.
Conclusion and Implications
Land use law places the highest level of importance on General Plan consistency—a General Plan must be internally consistent because virtually every local land use decision must be consistent with the General Plan and each of its elements. Accordingly, any General Plan amendments must be such that they do not cause any part of the General Plan to become inconsistent with other parts. However, when a General Plan is rendered internally inconsistent as a result of an initiative, the proper remedy is for the city that adopted the initiative to take appropriate action to correct the inconsistency. This opinion clarifies that the initiative is not considered void ab initio or required to be vacated.
The opinion may be accessed online at the following link:
https://www.courts.ca.gov/opinions/documents/A154759.PDF
