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Court of Appeal, First District, Division 5, California.

LESHER COMMUNICATIONS, INC., et al., Plaintiffs and Respondents, v. CITY OF WALNUT CREEK, Defendant and Appellant.

No. A037865.

Decided: September 14, 1989

Sanford M. Skaggs, Daniel J. Curtin, Jr., Maria P. Rivera, McCutchen, Doyle, Brown & Enersen, Walnut Creek, for plaintiffs and respondents. Ronald A. Zumbrun, Edward J. Connor, Jr., John H. Findley, John M. Groen, Pacific Legal Foundation, Sacramento, for amici curiae on behalf of plaintiffs and respondents. Mark I. Weinberger, Marc B. Mihaly, Rachel B. Hooper, Shute, Mihaly & Weinberger, San Francisco, David Benjamin, City Atty., John Truxaw, Deputy City Atty., Walnut Creek, for defendant and appellant. Stephan C. Volker, Sierra Club Legal Defense Fund, San Francisco, Barbara S. Blinderman, Beverly Hills, for amici curiae on behalf of defendant and appellant.


The City of Walnut Creek appeals from a judgment invalidating a local initiative which restricts real estate development as long as commute hour traffic at designated intersections exceeds 85 percent of capacity.   We hold the initiative was inconsistent with the City's existing general plan but must be construed as an amendment to the general plan and upheld on that basis.   We therefore reverse.


A. The Adoption of Measure H.

The challenged initiative, designated as Measure H, was adopted by Walnut Creek voters on November 5, 1985, following an extended period of substantial development in Walnut Creek with a consequent increase in local traffic congestion.   The two-part initiative contains a declaration of policy and a moratorium on future development.

The declaration of policy states that traffic levels exceeding 85 percent of street capacity “pose an immediate threat to the public health, safety and welfare,” and that traffic levels at or near capacity “increase the risk of traffic accidents, hinder or block the passage of police cars and emergency vehicles, increase air pollution, discourage people from shopping or doing business in Walnut Creek, and lower the quality of life for Walnut Creek residents.”

The moratorium section states that no building or structure shall be built in the City unless two conditions are met:  (1) commute hour traffic at all intersections on Ygnacio Valley Road and designated streets in the City's “core area” does not presently exceed 85 percent of capacity, and (2) the proposed building or structure will not increase commute hour traffic at any designated intersection above 85 percent of capacity.   The initiative exempts some types of development from the moratorium, including senior citizen housing, hospitals, schools, and small-scale commercial and residential projects.   The moratorium applies to all buildings and structures not yet under construction.

The initiative passed by a narrow margin of 9,562 to 9,162.   It took effect on November 29, 1985.   The parties stipulated in July 1986 that traffic at certain of the specified intersections presently exceeded 85 percent of capacity, so that the moratorium was in effect.

B. The Superior Court Judgment.

In January 1986, Lesher Communications, Inc., and two co-parties filed a petition for a writ of mandamus and a complaint for declaratory relief challenging the validity of Measure H.   The petition and complaint alleged that Lesher, a newspaper publisher and the largest private employer in the City, had plans to expand its facilities in Walnut Creek but that the moratorium established by Measure H had taken effect and as a practical matter would be permanent.   Lesher claimed the initiative was inconsistent with the City's general plan.  Government Code section 65860 requires a city's zoning ordinances to be consistent with its general plan.

Lesher asserted seven causes of action.   The first and sixth alleged inconsistency and sought declaratory relief.   The second, third and seventh causes of action alleged due process and equal protection violations and sought declaratory relief.   The fourth and fifth causes of action alleged violations of specific land use statutes.

In May 1986, the court sustained a demurrer without leave to amend as to the fourth and fifth causes of action.   In June 1986, the parties stipulated that the first and sixth causes of action would be severed for trial, the second, third and seventh causes of action would be dropped from calendar, and after the court's decision on the first and sixth causes of action the losing party would seek immediate appellate review.

On February 9, 1987, the court rendered judgment on the first and sixth causes of action.   The judgment declared Measure H invalid because of inconsistency with the general plan and required the City to void the initiative and cease its administration and enforcement.   In a statement of decision the court said the initiative did not constitute an amendment to the general plan and was inconsistent with the plan's proclaimed policy of growth and expansion of commercial and residential development, since development cannot take place as long as traffic exceeds 85 percent of capacity.

The City filed a notice of appeal from the judgment on February 26.   On April 27, the court clerk dismissed the second, third and seventh causes of action upon Lesher's request.   The court never disposed of the fourth and fifth causes of action.

C. Postjudgment Developments.

This appeal was originally assigned to Division Four of this Court.   The parties and amici curiae filed briefs discussing the issues of inconsistency and whether the initiative was a general plan amendment.   The briefs seemed to suggest, however, that the controversy might become moot as a result of subsequent local legislation.   In March 1988, Division Four directed the parties to file supplemental briefs advising the court of the status of any post-election legislation affecting the validity of Measure H and discussing mootness and ripeness issues.   The appeal was subsequently transferred to Division Five after one of the Division Four justices recused himself.

In response to Division Four's direction, the City filed a declaration by its chief of planning on April 14, 1988.   The declaration stated the following:  After the adoption of Measure H the city embarked upon a continuing planning process intended to lead to adoption of a new general plan incorporating the policies of Measure H.   Shortly after the trial court invalidated the initiative, the city council also commenced preparation of amendments to the existing general plan and zoning ordinance in accordance with Measure H.   In February 1988, however, the city council abandoned its efforts to amend the general plan, in order to avoid duplication of its ongoing efforts to adopt a new general plan.   The city council instead adopted an “interim” urgency ordinance similar to Measure H.

The interim urgency ordinance imposed a ban on development, with exemptions similar to those set forth in Measure H.   The ordinance differed materially from Measure H in two respects:  it was of limited duration, and it contained a grandfather clause permitting construction of buildings and structures which had already received final design review approval.

The City's declaration stated that Lesher submitted an application for expansion of its office facilities in April 1987 and received design review approval in November 1987, but was not eligible for a building permit due to Measure H.   It seems Lesher would otherwise have been permitted to proceed with construction under the grandfather clause in the interim urgency ordinance, but the City has stated in one of its briefs that it “has not yet determined whether respondent Lesher would be exempted under the grandfather clause of that ordinance.”

The City informed us that it anticipated its new general plan incorporating the policies of Measure H would be adopted by February 1989.   Consequently, on August 2, 1988, we removed the appeal from the active calendar pending the adoption of the new general plan, in anticipation that such adoption might render the lawsuit moot.  (See Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698, 179 Cal.Rptr. 261.)

The City adopted its new general plan on schedule on February 22, 1989, but the new plan contained growth and traffic standards varying from those of Measure H.   The varying provisions were submitted to the voters for approval in an election set for June 6, 1989.   The City continued to enforce Measure H and the balance of the new general plan pending the election.   The ballot measure, designated as Measure G, called for repeal of Measure H and adoption of the differing growth and traffic standards in the new general plan.   The City asked that this appeal be taken off calendar pending the election, and we granted the request.

In the June 6 election the voters rejected Measure G by a vote of 8,741 to 6,794.   Shortly thereafter we restored the appeal to the active calendar and requested supplemental letter briefs.

The City's supplemental letter brief stated that the city council was taking “immediate action” to revise the new general plan to incorporate the provisions of Measure H, and would consider the revisions before the rescheduled oral argument date.   The City asserted that the revisions would cure any conflict between Measure H and the new general plan and thus, at long last, render the lawsuit moot.   The city council ultimately adopted the general plan revisions on August 8, 1989, two days before oral argument.1


A. Mootness.

 Preliminarily, we must address the question of mootness, which has proved to be troublesome indeed.

Our removal of this appeal from the active calendar pending adoption of the new general plan was based on the rule that if disputed legislation is repealed during the pendency of an appeal concerning its validity, the appeal will be dismissed as moot.  (Sierra Club v. Board of Supervisors, supra, 126 Cal.App.3d at p. 704, 179 Cal.Rptr. 261.)   The court in Sierra Club held that a challenge to a zoning ordinance based on inconsistency with a general plan became moot when, during the pendency of the appeal, a new general plan was adopted with which the ordinance was consistent.  (Id. at pp. 704–706, 179 Cal.Rptr. 261.)   Based on the City's 1988 assertion that it was in the process of adopting a new general plan that would incorporate the policies of Measure H, we forestalled a decision on the merits, due to the imminent likelihood of Sierra Club mootness.2

Lesher has repeatedly argued that the adoption of a new general plan could not render the appeal moot, citing DeBottari v. City Council (1985) 171 Cal.App.3d 1204, 217 Cal.Rptr. 790 for the proposition that a zoning ordinance which is inconsistent with the general plan at the time of enactment is invalid when passed.   Lesher contends this means subsequent adoption or revision of the new general plan could not cure an inconsistency.

DeBottari did state that an inconsistent ordinance is “invalid when passed,” and in fact cited Sierra Club for this assertion.  (Id., at p. 1212, 217 Cal.Rptr. 790, citing Sierra Club v. Board of Supervisors, supra, 126 Cal.App.3d at p. 704, 179 Cal.Rptr. 261.)   But DeBottari did not dispute the rule of mootness set forth in Sierra Club.   The court did not even discuss mootness, because the procedural posture in that case was fundamentally different from that in Sierra Club.

DeBottari concerned an inconsistent referendum which the city council had refused to submit to the voters.   The court rejected the argument that the voters should have been permitted to vote on the referendum because the city council could subsequently have rectified the inconsistency by amending the general plan.   The court reasoned, “Unrestricted amendments of the general plan to conform to zoning changes would destroy the general plan as a tool for the comprehensive development of the community as a whole.”  (171 Cal.App.3d at p. 1212, 217 Cal.Rptr. 790.)   Mootness could not have become an issue in DeBottari, because the referendum had been withheld and thus could not have been adopted and made consistent through amendment of the general plan while the appeal was pending.

In Sierra Club, in contrast, the court said an inconsistent zoning ordinance was “invalid when passed” (126 Cal.App.3d at p. 704, 179 Cal.Rptr. 261), but nevertheless held the inconsistency issue became moot by subsequent adoption of a general plan with which the ordinance was consistent.   This was not so much a matter of “curing an inconsistency” as an application of the traditional judicial doctrine of mootness:  the inconsistency between ordinance and general plan no longer existed, so that there was no longer any dispute to adjudicate.

 Thus DeBottari and Sierra Club are harmonious and yield the following rule:  An inconsistent land use regulation is invalid at the time it is passed, but if the general plan is amended or a new general plan adopted to eliminate the inconsistency while an appeal is pending on that issue, the appeal will be dismissed as moot.

Had the City's new general plan incorporated the policies of Measure H when adopted in February 1989, this lawsuit would have become moot at that time.   Similarly, had the electorate approved Measure G, the lawsuit would have become moot by virtue of Measure H being repealed.3  But neither of these events occurred.

The City eventually amended the new general plan to incorporate the policies of Measure H, but for our purposes that raises more questions than it resolves.   Lesher asserts a host of reasons why the amendment is “illegal” (e.g., it creates internal inconsistencies in the new general plan, does not comply with the California Environmental Quality Act, and violates due process.)   Because the validity of the mooting event is in hot dispute, we believe it would be improper to decide this appeal on the ground of mootness without determining such validity.   That determination would require substantial additional briefing and, in all likelihood, further factfinding proceedings.   We are already on the brink of appellate litigation ad infinitum in this case.   We elect to take a raincheck on the issue of the amendment's validity.   The time has come to decide this appeal on its merits.

B. Ripeness.

 Division Four raised the question whether this action is “ripe” for adjudication, that is, whether it presents a real and substantive controversy touching the legal relations of parties having adverse legal interests.  (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170–171, 188 Cal.Rptr. 104, 655 P.2d 306.)   The City responded by arguing that the action is not ripe because the ultimate impact of Measure H is not yet known:  it is still unknown whether the conditional moratorium will as a practical matter become permanent, or how much development will be permitted under the initiative's exemptions.   A similar state of affairs supported a finding of unripeness in Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at page 172, 188 Cal.Rptr. 104, 655 P.2d 306.   Unripeness is also suggested by the fact that Lesher has apparently not yet applied for or been denied a building permit.

In the present context, however, ripeness is in effect created by statute.   Under Government Code section 65860, subdivision (b), any city or county resident or property owner may bring an action to enforce compliance with the requirement that zoning ordinances shall be consistent with the general plan.   Moreover, the statute requires that any such action must be filed within 90 days of the legislative enactment.   Similarly, under Government Code section 65009, subdivision (c), any action challenging the adoption or amendment of a general plan must be filed within 120 days of the legislative body's decision.

Thus, whether Measure H is viewed as a zoning ordinance or a general plan amendment, an immediate action was statutorily authorized and required.   The Legislature has in effect determined that “facial” inconsistency of a zoning ordinance and internal inconsistency within a general plan are alone sufficient to create a real and substantive controversy that is ripe for adjudication.   Judicial failure to defer to that legislative determination would create an impossible conflict:  a resident or property owner might be precluded by the doctrine of ripeness from commencing an immediate action, but would be precluded from doing so later by the statute of limitations.   We defer to the Legislature and find the controversy ripe for adjudication.

C. Appealability.

 An issue which the parties have never addressed is whether there was an appealable final judgment.   The judgment from which the City appealed disposed of only the first and sixth causes of action, so that there was not yet a complete disposition.   Even after the court clerk subsequently dismissed the second, third and seventh causes of action on Lesher's request there was no complete disposition, since there was no dismissal of the fourth and fifth causes of action on which the court had sustained a demurrer without leave to amend.   Technically there has not yet been an appealable final judgment.

 The record clearly indicates, however, that the trial court intended a complete disposition.   The appropriate procedure is for us to amend the appealed judgment to include the intended but omitted rulings on the remaining causes of action, so that there was in effect a timely appeal from a final judgment.  (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920–921, 167 Cal.Rptr. 831, 616 P.2d 813;  Tenhet v. Boswell (1976) 18 Cal.3d 150, 153–155, 133 Cal.Rptr. 10, 554 P.2d 330;  Gombos v. Ashe (1958) 158 Cal.App.2d 517, 519–524, 322 P.2d 933.) 4

D. Inconsistency With the General Plan.

We turn now to the consistency issue, and another perplexing dilemma.   The issue is whether Measure H is inconsistent with the City's general plan and thus violates Government Code section 65860.   The dilemma is whether to determine consistency by reference to the former general plan (that is, the plan in existence when Measure H was passed), the new general plan as adopted in February 1989, or the new general plan as amended in August 1989.

We find ourselves in the peculiar position of having no choice but to decide the consistency issue by reference to the former general plan.   The new general plan has proved to be a moving target.   Obviously Measure H is consistent with the new plan as amended in August 1989, but the validity of that amendment is disputed.   Because we choose not to resolve that dispute here, it would be inappropriate for us to decide consistency by reference to the amended new plan.   Obviously Measure H is inconsistent with the unamended new plan as adopted in February 1989, but the inconsistent provisions of the plan were so short-lived that it would be absurd to determine consistency by reference to those provisions.

Because of these unique circumstances, we shall restrict our review to the City's original challenge to the trial court's determination of inconsistency between Measure H and the former general plan.   Fortunately, this does not place us in the uncomfortable position of invalidating an initiative due to a past inconsistency that, in the grand scheme of land use planning, can best be described as ephemeral.   As will be seen, we shall uphold the initiative by construing it as an amendment to the former general plan.   But first we deal with the consistency issue.

 Preliminarily, Lesher contends the trial court's finding of inconsistency is subject to the substantial evidence standard of appellate review.   This standard, however, applies only to trial court resolution of evidentiary conflicts.   Here, the determination of consistency depends not upon conflicting evidence but upon an assessment of the text of Measure H and the text of the former general plan.   The situation is analogous to the interpretation of a writing absent conflicting extrinsic evidence, in which the appellate court will interpret the writing independent of the trial court ruling.  (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865–866, 44 Cal.Rptr. 767, 402 P.2d 839.)   The rationale for this approach—that there is no reason for deference to the trial court if the appellate court is in at least as good a position to interpret the writing (see Davies Machinery Co. v. Pine Mountain Club, Inc. (1974) 39 Cal.App.3d 18, 23, 113 Cal.Rptr. 784)—is equally applicable here.   The question of inconsistency is thus a proper subject of independent appellate determination.  (See Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 96–97, 212 Cal.Rptr. 273 [general plan's internal consistency subjected to independent appellate review].)

 The City contends the trial court erred by focusing on select policies in the former general plan that promoted growth, while ignoring countervailing plan policies that Measure H promotes.   But the former plan, adopted in 1971, was indeed very growth-oriented.   That orientation was reflected in the following development policies stated in the plan, upon which the trial court relied to find inconsistency:

1. “To enhance Walnut Creek's subregional position as the administrative and professional office center of Central Contra Costa County.”

2. “To strengthen and enhance Walnut Creek's position as a subregional retail shopping center.”

3. “To provide neighborhood and community shopping centers to meet the local convenience needs of the City's residential areas.”

4. “To provide a broad choice of types and price ranges of housing.”

5. “To provide for the continued development of a variety of types of dwellings to maximize choice on the part of future residents.”

6. “To encourage the development of housing to serve a broader range of middle income families.”

7. “To provide housing to meet the varied needs of all age groups in the life cycle.”

8. To “increase housing densities in the high density multi-family category of the core area plan from 22–30 units per acre to a range of from 30 to 50 units per acre.”

9. To grant “density bonuses” to allow for “economically feasible development” of low and moderate income housing.

10. “To conserve and expand stable and identifiable residential areas that can be conveniently served by schools, parks, shopping centers and other community facilities.”

11. “To provide for the orderly, functional and compatible redevelopment of areas that no longer are physically sound, socially acceptable, or economically productive.”

The City concedes these policies were pro-growth, but argues they were not rigid, absolute mandates to be considered in isolation from countervailing policies in the general plan.   The City points to conservation-oriented plan policies with which Measure H is consistent, including the following:

1. To promote the City's desire for “a high environmental quality.”

2. “To provide an orderly, functional and compatible land use pattern to guide development of the community over the next 20 years.”

3. “To provide a safe, expedient, functional and compatible circulation system offering a broad choice of mode of travel.”

4. “To retain air and water resources for the health and safety of local residents.”

5. “To expand the local arterial and expressway system to accommodate the through traffic needs of the community.”

6. To make open space preservation “the first and over-riding priority” of the general plan.

7. To provide a “Central Commercial District that is easily accessible from Central Contra Costa County․”

8. To “scale” functional areas to the mode of travel that serves them.

9. “To provide a comprehensive open space framework for conserving our natural resources, enhancing the visual amenity of the community and supporting more extensive leisure activity.”

10. To “encourage a level of development in the Core Area that will not cause continuous traffic congestion.”

According to the City, there was natural “tension” between these two sets of countervailing policies (see Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 175, 217 Cal.Rptr. 893), and Measure H was consistent with the former general plan as an “integrated, balanced whole.”

These competing arguments simply demonstrate that when dealing with a document like the general plan, which consists of broad statements of developmental policies (Gov.Code, § 65302) and is “a constitution for all future developments” (O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 782, 42 Cal.Rptr. 283), it is possible to cull out policy statements scattered throughout the plan and marshal a convincing argument for nearly any position the advocate wishes to assert.   This is not the path to an accurate determination of consistency.   Where there is no direct inconsistency with a narrowly-defined policy or specific directive in a general plan (e.g., a conflict with density standards), so that a finding of inconsistency must depend upon inconsistency with broad developmental policies, the general plan must be viewed as an integrated document encompassing concerns both compatible and competing, and a finding of inconsistency should require direct conflict with the ultimate policies of the general plan in their very broadest sense.

In the present case, however, regardless of consistency with the broad, conservation-oriented platitudes cited by the City, there was direct inconsistency with a narrowly-defined policy and a specific directive in the portion of the former general plan dealing with traffic congestion.   The policy and directive appeared in the general plan's circulation element, adopted in 1977 as the City's “Comprehensive Transportation Plan.” 5

The transportation plan stated that its general goal was “[t]o develop a coordinated, efficient, safe, and multi-modal transportation program․”  More specifically, however, it repeatedly stated a policy that residents would have to accept increased traffic congestion.

First, the introductory summary to the transportation plan stated, “Commute-hour congestion experienced along Ygnacio [Valley Road], Treat [Boulevard], [Freeway] I–680, and other roadways will continue to increase as new development occurs.   Although some minor improvements can be made to these roadways, drivers will have to adjust to an increased level of congestion.”   (Emphasis added.)

Next, the transportation plan's “Circulation System Overview” stated that “the most significant impact from new growth” upon traffic congestion in Walnut Creek would be attributable to new construction outside the City.   This implied a conclusion (rightly or wrongly) that controls on development within the City would not prevent increased traffic congestion.   The Circulation System Overview also acknowledged that one of the streets designated in Measure H, Ygnacio Valley Road, was “now operating near capacity during commute hours.”

Under the heading “Proposed Circulation System” the transportation plan stated that Ygnacio Valley Road would not be widened beyond six lines, and that “[c]ommunity tolerance for congestion, primarily during commute hours, will have to increase.”  (Emphasis added.)

Finally, under the heading “Roadway Alternatives Considered” the transportation plan stated that with regard to traffic flow on Ygnacio Valley Road and Treat Boulevard, “many alternatives to provide even a small measure of relief to these corridors were considered.   Other than capacity improvements at intersections and signal timing modifications, virtually every alternative has been rejected.   The result of these decisions will be increased congestion on Ygnacio Valley Road and Treat Boulevard, which local residents will have to accept.”  (Emphasis added.)   The plan listed five types of rejected alternatives, including “decreased development or lower densities,” with an explanation that residential densities in appropriate areas had already been lowered.

Thus, the general plan asserted a narrowly-defined policy with regard to increased traffic congestion on city streets generally and Ygnacio Valley Road in particular:  residents would have to tolerate and accept it.   The plan also contained a specific directive as to Ygnacio Valley Road:  decreased development and further lowering of densities were rejected as methods of alleviating traffic congestion.

Measure H's inconsistency is obvious.   The initiative took a bold step toward fighting traffic congestion, while the former plan's narrowly-defined policy was one of tolerance and acceptance.   The initiative relied solely on decreased development to alleviate traffic congestion, while the plan specifically rejected this method with regard to one of the very streets designated in the initiative.

Measure H marked a turning point in the City's attitudes toward increased traffic congestion and what is to be done about it.   The initiative constituted a sharp turn away from existing general plan policies.   In other words, it was inconsistent with the former general plan.

E. Construction of Measure H as an Amendment to the General Plan.

 It is clear that a fundamental shift in developmental policy must take place within the structure of the general plan.   What remains to be determined is whether Measure H can be construed as a valid amendment to the former general plan.   If so, the initiative's inconsistency with the former plan is inconsequential, and we need not determine the appropriate remedy for such inconsistency.  (See Building Industry Assn. v. Superior Court (1989) 211 Cal.App.3d 277, 297, 259 Cal.Rptr. 325.)

 Analysis of the amendment issue is profoundly affected by the fact Measure H was an initiative passed by the people of Walnut Creek.  “Declaring it ‘the duty of the courts to jealously guard this right of the people’ (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307] ), the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process' (Mervynne v. Acker [1961] 189 Cal.App.2d 558, 563 [11 Cal.Rptr. 340] ).  ‘[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.   If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’  (Mervynne v. Acker, supra, 189 Cal.App.2d at pp. 563–564 [11 Cal.Rptr. 340];  Gayle v. Hamm [1972] 25 Cal.App.3d 250, 258 [101 Cal.Rptr. 628].)”  (Associated Home Builders Etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473, fn. omitted;  accord, Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 821, 226 Cal.Rptr. 81, 718 P.2d 68.)   Thus, if at all possible, we must interpret Measure H in such a manner as to confer validity.  (Creighton v. City of Santa Monica (1984) 160 Cal.App.3d 1011, 1018, 207 Cal.Rptr. 78;  Hughes v. City of Lincoln (1965) 232 Cal.App.2d 741, 749, 43 Cal.Rptr. 306.)

The trial court held Measure H was not a general plan amendment for two reasons:  (1) the initiative was not described as such, and (2) it was detailed in scope and self-executing, whereas a general plan is “constitutional” in nature and consists of general statements of developmental policies.   Neither of these reasons precludes a liberal construction of the initiative as a general plan amendment.

On the first point, the measure described itself only as a “Traffic Control Initiative.”   It did not purport to be a general plan amendment, a zoning ordinance, or any other type of local regulation.   But labels are rarely afforded determinative legal significance.   One of our most basic maxims of jurisprudence is, “The law respects form less than substance.”  (Civ. Code, § 3528.)   Lesher's own land use expert conceded below that the initiative's title designation does not determine its appropriate characterization.   While a description of the initiative's character might have provided some insight into the intent of the people, the absence of any description should not preclude a liberal interpretation upholding the initiative's validity as a general plan amendment.

On the matter of specificity and self-execution, the initiative was arguably more like a zoning ordinance than a general plan provision.   A general plan is intended to be a statement of developmental policies (Gov. Code, §§ 65300.5, 65302), while zoning ordinances implement those policies.   Measure H both stated a policy and implemented it.   But does this preclude a construction of the initiative as a general plan amendment?

A helpful way of analyzing this question is to ask what the result would have been if Measure H had been specifically designated as a general plan amendment.   Would it have been invalidated because it was excessively specific and self-executing?

Certainly not.   No law states that the general plan must be limited to policy statements and cannot contain specific and self-executing provisions usually seen in an ordinance.   Indeed, several statutory provisions suggest otherwise.  Government Code section 65301, subdivision (c), states that “[t]he degree of specificity and level of detail of the discussion of each such element [of the general plan] shall reflect local conditions and circumstances.”  Government Code section 65302 states that the plan shall include “standards” as well as objectives and principles, and Government Code section 65303 states that the plan may address any subjects “which, in the judgment of the legislative body, relate to the physical development of the county or city.”   The law is concerned with lack of specificity in the general plan, not excessive specificity.  (See, e.g., Twain Harte Homeowners Assn. v. County of Tuolomne (1982) 138 Cal.App.3d 664, 696–702, 188 Cal.Rptr. 233.)

If the general plan is a “constitution” for all future development (O'Loane v. O'Rourke, supra, 231 Cal.App.2d at p. 782, 42 Cal.Rptr. 283), then an analogy to the California Constitution is appropriate.   Our state Constitution contains many provisions that are specific and self-executing, some of which were created by initiative.   The most obvious example is article XIIIA, added by Proposition 13, which fully regulates the level of real property taxation.   The “constitutional” nature of the general plan is no bar to specific and self-executing provisions.

Construction of Measure H as a general plan amendment does create internal inconsistency within the former plan, since the initiative did not delete inconsistent portions of the former plan's circulation element.   A general plan must be an integrated, internally consistent document.  (Gov. Code, § 65300.5;  Concerned Citizens of Calaveras County v. Board of Supervisors, supra, 166 Cal.App.3d at pp. 96–97, 212 Cal.Rptr. 273.)

 But internal inconsistency is not necessarily fatal to either a general plan amendment or the entire plan.   Upon a judicial determination that a general plan element is internally inconsistent, Government Code section 65754, subdivision (a), requires local government to bring the general plan into compliance with the law within 120 days.   The court need not invalidate the entire plan, but can choose to set aside only the internally inconsistent element.  (Concerned Citizens of Calaveras County v. Board of Supervisors, supra, 166 Cal.App.3d at p. 103, 212 Cal.Rptr. 273.)   Indeed, it is not even clear that any judicial invalidation is required.   Existing law does not appear to preclude a judicial remedy, in appropriate cases, limited solely to a judgment requiring legislative correction of internal inconsistency under section 65754.   The courts seem to have broad latitude to fashion an appropriate remedy.6

Given the people's clear expression of intent to turn away from the policy of tolerance and acceptance contained in the former plan's circulation element, absent adoption of a new general plan the only appropriate judicial responses to the internal inconsistency would have been either to set aside the inconsistent circulation element rather than Measure H and direct the City to adopt a legally adequate and consistent circulation element (see Concerned Citizens of Calaveras County v. Board of Supervisors, supra, 166 Cal.App.3d at pp. 103–105, 212 Cal.Rptr. 273), or simply to direct the City to eliminate the internal inconsistency in accordance with Measure H.   In the present context, however, such relief is unnecessary, in light of the adoption and amendment of the new general plan.7

We therefore return to the only possible obstacle to construction of Measure H as a general plan amendment, the initiative's failure to describe itself as such—for example, with a simple prefatory statement that “this initiative amends the general plan for the City of Walnut Creek.”   In view of the profound duty of the courts to “jealously guard” the initiative process, the will of the Walnut Creek voters cannot be thwarted based on such a hypertechnicality.

In conclusion, neither the absence of the proper label, nor excessive specificity and self-execution, nor internal inconsistency is a bar to construction of Measure H as a general plan amendment.   Admittedly the initiative process is not the ideal method for amending general plans, which tend toward complexity in both their content and manner of adoption and as integrated documents are not particularly amenable to piecemeal changes.8  But initiatives are seldom models of technical legal perfection.   In light of the judicial policy requiring interpretation of Measure H in such a manner as to implement the expressed will of the people of Walnut Creek and confer validity, the initiative must be construed as a general plan amendment because it can be so construed.   This causes the former plan's circulation element to be inconsistent with the remainder of the former plan as amended by the initiative, but judicial relief would be meaningless, and is therefore unnecessary, in light of the City's adoption and amendment of the new general plan.


The judgment is reversed.   The City is awarded its costs on appeal.


1.   There are four pending requests for judicial notice of multiple documents.   Because we can decide the appeal without reference to these documents, we deny the requests.

2.   Even if we had decided the appeal on schedule, our decision might not have become final before adoption of the new general plan.

3.   In contrast, the adoption of the interim urgency ordinance incorporating the substance of Measure H did not render the case moot, because of the ordinance's limited duration and the presence of the grandfather clause.

4.   Another potential theory of appealability is that the judgment on the first and sixth causes of action was appealable as a final disposition on severed causes of action which were separate and independent from the causes of action remaining to be tried.  (See Highland Development Co. v. City of Los Angeles (1985) 170 Cal.App.3d 169, 179, 215 Cal.Rptr. 881;  Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 416–419, 123 Cal.Rptr. 669.)   Within the present context, however, this theory is rather weak.   The severed causes of action do not seem truly independent from the remaining causes of action, and the parties' stipulation for severance strongly suggests the severance was expressly for the improper purpose of attempting to permit an immediate appeal from a nonfinal judgment.  (See Armstrong Petroleum Corp. v. Superior Court (1981) 114 Cal.App.3d 732, 735–737, 170 Cal.Rptr. 767.)

5.   The trial court did not discuss the Comprehensive Transportation Plan in its statement of decision.

6.   Such an approach would appear to address the concern, expressed in an amicus curiae brief submitted by eight citizens' organizations, that general plan amendments by initiative would become impossible, due to excessive complexity and technicality, if the initiative's validity required its express amendment of the general plan to eliminate all inconsistencies created by the initiative.

7.   We are assuming here that the statutory rule permitting a city's legislative body to amend a general plan at any time (Gov.Code, § 65358) is limited by the statutory rule precluding amendment of a municipal initiative without submission to the voters (Elec.Code, § 4013), and thus the present internal inconsistency could not have been remedied by legislative changes to Measure H.   The parties have not briefed this issue, however, and we need not face it squarely since there is now a new general plan.

8.   For example, amicus curiae Pacific Legal Foundation points out that where a general plan is amended by initiative in a manner that restricts development, problems may arise with regard to the adequacy of the plan's housing element (Gov.Code, § 65583) and the requirement that a housing element amendment be submitted to the Department of Housing and Community Development (Gov.Code, § 65585).   But Lesher does not claim, and the record does not independently demonstrate, that any such problems in this case could not have been addressed by an appropriate court order to bring the former general plan into compliance with the law as required by Government Code section 65754.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.