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WARNER RIDGE ASSOCIATES, Plaintiff and Respondent, v. CITY OF LOS ANGELES; Joy Picus; John Ferraro; Zev Yaroslavsky, etc., et al., Defendants and Appellants.
Defendants and appellants the City of Los Angeles (City), City Council members Joy Picus (Picus), John Ferraro (Ferraro), and Zev Yaroslavsky appeal the issuance of a writ of mandate in favor of plaintiff and respondent Warner Ridge Associates (WRA) by which the trial court directed the City to zone WRA's real property consistently with the General Plan.1 ,2
Because the zoning ordinance in issue was inconsistent with the City's General Plan when enacted, the trial court properly found it invalid and directed the City to zone the property so as to achieve consistency. The order granting the writ therefore is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Contents of the verified complaint.
On April 17, 1990, WRA filed an 85–page verified complaint against the City for damages; declaratory relief; and violations of the Fifth and Fourteenth Amendments, the Brown Act, Government Code section 65090, et seq.,3 section 65860, the California Environmental Quality Act (CEQA), and the City Charter.
The subject of the complaint is a 21.5 acre parcel of real property (the property) in the Woodland Hills area of Los Angeles. It is bounded on the north and west by DeSoto Avenue, on the south by Oxnard Street, and on the east by Pierce College. Warner Center, a light industrial and commercial complex, is north and west of the property; Pierce College on the east is marked by farm activities; low and medium density residential uses are found to the south and east.
The complaint discloses extensive background and historical perspective leading to the current dispute which we summarize below.
In 1969 the City zoned the property RA–1 (rural residential) and A1–1 (agricultural). In 1972, the then owner applied for and obtained zoning which allowed construction of approximately 405 dwelling units (RD–2, low-medium residential). That zoning lapsed of its own terms when no development had been undertaken by 1974 and the zoning reverted to RA–1 and A1–1.4
In December 1977, the property owner sought RD2–1 zoning to allow 210 condominium units at approximately 10 dwelling units per acre. Due to public opposition, the applicant withdrew this proposed zone change.
In 1979, a joint venture known as the Mayer Group purchased the property. The Mayer Group requested commercial zoning to allow construction of approximately 1 million square feet of office space in six, three to eleven story structures, and a 1 million square foot parking structure (the Mayer Project).
“The Final EIR ․ prepared for the Mayer Project in July 1983 states: [¶] ‘Each attempt to build a residential tract (on the Property and adjoining land) has resulted in a finding that almost all areas of the environment would be adversely affected. An unusual and major issue surrounding these attempts has been the proximity of the site to the Pierce College Farm: ․ The decision of the [City] Planning Department to restrict residential development to property south of Oxnard Street was in response to this concern.’ ”
State law requires every county and city to adopt a general plan which comprehensively sets out the long term plan for physical development. (§ 65300.) Every general plan must include, among other things, a land use element. The land use element of the City's General Plan (the General Plan) is made up of 35 district plans. The property is located within the Canoga Park–Winnetka–Woodland Hills district of the City.
On October 24, 1984, the City adopted a new Canoga Park–Winnetka–Woodland Hills District Plan (the 1984 District Plan). The 1984 District Plan designated the property for commercial development as “neighborhood and office” (NOC). The 1984 District Plan indicates the zones which correspond to the NOC designation are CR, C1, C1.5, C4 and P. These zones allow various intensities of commercial development and parking. However, the property remained zoned RA–1 and A1–1.
A section headed “Warner Ridge Specific Plan” is part of the 1984 District Plan. It states: “Much controversy has centered around the issue of how [the property] ․ should be developed. The two major alternatives were condominiums at Low–Medium density or single-family homes at Very Low density. Because the alternative of condominiums encountered strong community opposition and the other alternative of single-family homes was not economically feasible, an alternative of commercial development with high-quality office buildings emerged as a means of resolving the impass. This alternative would result in an office complex with extensive landscaping similar to nearby developments in Warner Center and having heavy emphasis on minimizing adverse impacts on neighboring Pierce College farm activities. The Plan authorizes the development of a Specific Plan for Warner Ridge to provide for the development of the site with office commercial uses.”
The 1984 District Plan also designated a strip of open space between the property and Pierce College.
WRA purchased the property in 1985 in reliance “upon the past development history, the 1984 District Plan EIR, the NOC designation in the 1984 District Plan, ․ and the representations and encouragement of Defendants that an appropriate NOC development project would be approved.” WRA intended to develop the property commercially based upon a representation from Picus to the former owners that there was “ ‘absolutely no chance’ ” of residential development.
WRA originally proposed a 950,000–square–foot project. WRA and the City began to prepare a draft EIR. On October 1, 1985, on motion of Picus, the City Council approved preparation of a Specific Plan for the property and appointment of a seven-member Citizens Advisory Committee (CAC) to evaluate the plan. After WRA reduced the project to 810,000 square feet and more than 50 percent open space, the CAC unanimously approved the draft Specific Plan.
On August 22, 1986, WRA applied for a zoning change to C4, a tentative tract map, a General Plan amendment increasing the maximum building height, and other permits needed to proceed with the project as approved.
Picus instructed WRA to obtain the support of Pierce College which opposed residential development of the property. WRA did so. In April of 1987, Picus told WRA to obtain the support of adjacent property owners in addition to Pierce College. Based on contacts with neighbors, WRA modified its project and supplemented the Draft EIR.
In September 1987, WRA notified Picus it had obtained the support of the adjacent property owners. Picus however informed WRA it now needed the support of the community as a whole.
In September 1988, the Woodland Hills Homeowner's Organization advised Picus it opposed the WRA project. On November 8, 1988, Picus announced opposition to the project and on November 22, 1988, proposed to the City Council that the property be zoned low density residential.
On June 22, 1989, the City Planning Commission approved the WRA project by a three-two vote with one nay vote indicating support for less dense commercial development.
However, after conducting a public hearing on the matter, the City Council rejected the WRA project and passed Picus' zoning proposal which designated the property (T)RS–1 (residential suburban). That zoning allows single family residences on large estate sized lots (minimum 7,500 square feet). The City Council sent the zoning ordinance to Mayor Thomas Bradley for approval on February 7, 1990. Ferraro, acting mayor, signed the ordinance despite the fact that no controversial zoning ordinance had been signed in Bradley's absence in the prior 15 years without Bradley's prior approval.
WRA has invested nearly $50 million to develop the property as NOC. WRA requests damages and relief based on all causes of action alleged.
2. WRA's motion for judgment on writ of mandate in the trial court.
The next critical pleading in the progression of the case to this court was WRA's motion for judgment on writ of mandate.
a. Contents of the motion.
On May 21, 1990, WRA filed a petition for a writ to compel the City to comply with section 65860 and to require the City to zone the property so that it would be consistent with the General Plan. Because the trial court issued the order based upon this ground, we need not consider WRA's further claims the City violated CEQA, the Brown Act and the City Charter.
In support of its motion, WRA relied upon section 65860, subdivision (a) which requires zoning to be consistent with the General Plan. That section states a zoning ordinance “[is] consistent with a city['s] ․ general plan only if: [¶] (i) The city ․ has officially adopted such a plan, and [¶] (ii) The various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in such a plan.”
b. The City's opposition.
The City opposed the motion. It argued the zoning of the property was consistent with the General Plan and that the text of the 1984 District Plan stated reliance should not be placed on the zone designations set forth therein. The City also asserted that, pursuant to its hierarchy approach to zoning, all less intensive land uses are permitted within any zone.
The declaration of Senior City Planner Daniel Green (Green) stated the City's Planning and Zoning Code, chapter 1 of the Los Angeles Municipal Code, generally allows all residential uses in commercial zones. Green declared the “ ‘commercial’ classification of the Warner Ridge property on the [1984 District] Plan map contemplates that the property might be zoned and used not only for commercial uses but residential uses as well. The purpose of coloring the [map of the] property with a color indicating a ‘commercial’ designation was to preserve the widest possible range of potential uses, consistent with the purposes and objectives of the Plan. Given the objectives of the Plan to provide for sufficient housing opportunities and to preserve single family neighborhoods (such as that to the immediate southeast of the property) from the intrusion of other types of uses, it was reasonable for the Council to find that RS zoning on the property is consistent with the [General] Plan.”
The City claimed the Los Angeles Municipal Code allows the City Planning Commission to act upon an application for change of zone by recommending either the approval or disapproval of the application or to recommend “any zone between that existing on the property and that requested in the application[.]” (Los Angeles Mun.Code, § 12.32(D)(3).)
The City also argued the City Council specifically had found the RS zoning of the property to be consistent with the General Plan as follows:
“1. General Plan Consistency․ The recommended (T)RS–1 zone change IS CONSISTENT [with the General Plan] since residential development is permitted by the plan designation and IS in substantial conformance with the purposes, intent and provisions of the General Plan as reflected in the adopted District Plan.”
3. The trial court's rulings.
a. The trial court's first order.
The trial court's first order, dated June 21, 1990, stated: “The question presented by this petition is this: is a zoning ordinance consistent with the general plan if the ordinance prohibits all commercial uses in an area designated in the general plan for commercial use? The answer is obviously no.”
The trial court further stated: “No reasonable person can seriously believe that a zoning ordinance which prohibits all commercial uses in an area designated in the general plan for commercial uses is ‘consistent’ with the general plan. Such an ordinance is not ‘consistent’ with the plan in any meaningful sense of the word ‘consistent’ nor in any sense in which the word ‘consistent’ has been used in the case law. See, e.g., deBottari [v. City Council (1985) ] 171 [Cal.App.3d] 1204 [217 Cal.Rptr. 790]․ This zoning ordinance was ‘invalid when passed’․”
The trial court ruled its determination rendered moot WRA's other asserted bases for the writ petition, i.e., violations of the Brown Act, CEQA, and the City Charter.
The trial court directed: “7. In order to bring the zoning into consistency with the general plan, the City must enact a zoning ordinance placing the parcel in question into one or more of the following zoning classifications: CR, C1, C1.5, C4 or P—and no others. The issue of whether the City may allow a ‘lower’ use within these zones is not germane here and is not decided.”
“8. The City has stated an intention to amend the general plan to bring the general plan into consistency with the zoning ordinance recently enacted. Clearly, this is an illegal backwards approach to the important environmental issue of land use․ Nevertheless, the court makes no ruling regarding what procedures the City may undertake after amending the zoning ordinance to bring it into consistency, or whether the amendment of the general plan may then be permissible or not. The court notes that a proposal to amend the general plan to allow the zoning in question has been languishing in City council for over a year and a half.”
b. The motions for reconsideration.
The City sought reconsideration of the trial court's first order based upon an intervening appellate decision. In response to the City's citation of this case, the trial court modified its original order to delete the requirement that the City zone the property in one of the enumerated zoning categories.
After issuance of the trial court's second order, our Supreme Court ordered the case relied upon by the City not to be published in the official reports. Upon issuance of the August 30, 1990 depublication order, WRA sought reconsideration of the second order.
The City filed an appeal before the hearing date in an attempt to ensure the benefit of the second favorable order. Nonetheless, at the hearing on the second motion for reconsideration, the trial court essentially reinstated its first order.
The third order of the trial court granted the petition and issued a writ of mandate commanding the City “to perform [its] statutory duty pursuant to Government Code § 65860(c) to amend [the zoning ordinance] ․ to bring the zoning into consistency with the General Plan within 30 days from September 11, 1990. The zoning ordinance enacted shall place the ․ property into one or more of the following zoning classifications: CR, C1, C1.5, C4, or P, or a new zoning classification which is within the scope of these five zones, as provided in the General Plan.” 5
The City appealed from that order.
The City contends the trial court's order improperly restricts its right to zone less intensely than the level allowed in the General Plan. The City claims the remedy ordered by the trial court, i.e., a directive to zone the property in a specified fashion, violates the doctrine of separation of powers.
The City also claims (1) WRA's challenge to the zoning is barred by the statute of limitations; (2) section 65860, subdivision (c), does not apply in this case; and (3) the trial court lacked jurisdiction to make its third order.
Amicus curiae Federation of Hillside and Canyon Homeowners Association (Hillside) argues the residential suburban zoning was consistent with the uses contemplated by the General Plan, and the trial court erroneously directed the City to perform a legislative act in a particular manner.6
1. General plans.
Section 65300 requires each county or city to adopt “a comprehensive, long-term general plan” for its physical development. Section 65302 states: “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.” Section 65302 also enumerates seven elements which every general plan must include: land use, circulation, housing, conservation, open-space, noise and safety.
In addition to being geographically comprehensive, a general plan must address each of the mandatory elements. “A truly comprehensive general plan covers all locally relevant physical, social and economic planning issues.” (Cal. Office of Planning and Research, General Plan Guidelines (1990) p. 9 [hereafter General Plan Guidelines].) 7 Physical development concerns include “the general locations, appropriate mixtures, timing and extent of land uses and supporting infrastructure.” (Ibid., emphasis added.)
The land use element “designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space ․ and other categories of public and private uses of land. The land use element shall include a statement of the standards of population density and building intensity recommended for the various districts and other territory covered by the plan.” (§ 65302, subd. (a).)
“Since the general plan affects the welfare of current and future generations, state law requires that the plan take a ‘long-term’ perspective․ It is long term in two senses: (1) it establishes goals and projects conditions and needs into the future as a basis for determining objectives; and (2) it establishes long-term policy for day-to day decision making based upon those objectives.” (General Plan Guidelines, supra, at p. 13.)
“The general plan is atop the hierarchy of local government law regulating land use.” (Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176, 1183, 203 Cal.Rptr. 401; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 742, 270 Cal.Rptr. 650.)
2. The consistency requirement.
“At one time, the local general plan was looked upon as a set of broad policies that had little actual role in development decisions․ [¶] The general plan consistency requirements have enlarged the role of the general plan in the physical development of cities and counties.” (General Plan Guidelines, supra, at p. 5.)
The consistency requirement has “transformed the general plan from just an ‘interesting study’ to the basic land use charter governing the direction of future land use in the local jurisdiction. [Citation.] ․ As a result, general plans now embody fundamental land-use decisions that guide the future growth and development of cities and counties.” (City of Santa Ana v. City of Garden Grove (1979) 100 Cal.App.3d 521, 532, 160 Cal.Rptr. 907.)
b. Interpretation of the consistency requirement.
Section 65860, subdivision (a)(ii), states a zoning ordinance is consistent with the general plan if “[t]he various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in such a plan.”
The General Plan Guidelines concede that consistency “is difficult to determine precisely. In practice, it is often easier to determine inconsistency than consistency.” (General Plan Guidelines, supra, at p. 211.) Nonetheless, the General Plan Guidelines state the following General Rule: “An action, program or project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.” (Id., at p. 212.)
Consistency does not mean identity between the ordinance and every detail of the general plan. Rather, a zoning ordinance must be evaluated in light of the overall goals of the plan and current conditions. (Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201, 1215, 252 Cal.Rptr. 825.) Complete consistency would eliminate all zoning which did not comply with the general plan. (Di Mento, Looking Back: Consistency in Interpretation of and Response to the Consistency Requirement, A.B. 1301 (1975) 2 Pepperdine L.Rev. S196, S199.)
Two cases constitute controlling precedent in our interpretation of consistency as applied to the fact situation here: Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 277 Cal.Rptr. 1, 802 P.2d 317, and deBottari v. City Council, supra, 171 Cal.App.3d 1204, 217 Cal.Rptr. 790.
Lesher involved a slow growth initiative passed by the Walnut Creek electorate which directly conflicted with the growth oriented General Plan of the City of Walnut Creek. Lesher addressed the tension between the right of the populace to enact legislation on the one hand, and the need for zoning ordinances, however enacted, to conform to the general plan, on the other.
The high court rejected the contention the initiative had amended the general plan because the measure nowhere indicated any intent or purpose to do so.
Lesher observed: “The [state] Planning and Zoning Law itself precludes consideration of a zoning ordinance which conflicts with a general plan as a pro tanto repeal or implied amendment of the general plan. The general plan stands. A zoning ordinance that is inconsistent with the general plan is invalid when passed [citations] and one that was originally consistent but has become inconsistent must be brought into conformity with the general plan. (§ 65860.) The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. The tail does not wag the dog. The general plan is the charter to which the ordinance must conform. [¶] Therefore, we necessarily reject Walnut Creek's suggestion that an intent to amend the general plan may be inferred from the very inconsistencies which under the Planning and Zoning Law invalidate the ordinance.” (Lesher Communications, Inc., supra, 52 Cal.3d at p. 541, 277 Cal.Rptr. 1, 802 P.2d 317, emphasis added.)
In the course of its discussion, the Lesher court cited deBottari with approval. In deBottari, a developer requested and obtained a general plan amendment and zoning change which allowed construction of four single family homes per acre on a 30–acre parcel of property. The prior general plan and zoning had allowed only two homes per acre.
Thereafter, residents of Norco submitted a referendum petition calling for the repeal of the plan amendment and the new zoning ordinance. The city council refused to submit the referendum to the voters or repeal the zoning and plan amendment ordinances on the ground that such action “would result in the subject property being zoned inconsistently with the amended general plan․” (deBottari, supra, 171 Cal.App.3d at p. 1208, 217 Cal.Rptr. 790.)
The deBottari court approved the Norco city council's refusal to submit the referendum to the voters on the ground the referendum's two homes per acre zoning would have constituted “a clearly invalid zoning ordinance.” (deBottari, supra, 171 Cal.App.3d at p. 1213, 217 Cal.Rptr. 790.) deBottari concluded “the invalidity of the proposed referendum has been clearly and compellingly demonstrated. Repeal of the zoning ordinance in question would result in the subject property being zoned for the low density residential use [two dwellings per acre] while the amended plan calls for a higher residential density [four dwellings per acre].” (Id., at p. 1212, 217 Cal.Rptr. 790.)
c. Standard of review.
The facts are not in dispute. The trial court issued its order based upon the interpretation of a statute, case law and their application as a matter of law. This court, therefore, exercises its independent power of review. (Industrial Asphalt, Inc. v. Garrett Corp. (1986) 180 Cal.App.3d 1001, 1004, 226 Cal.Rptr. 17; Verdugo Woodlands Homeowners, etc. Assn. v. City of Glendale (1986) 179 Cal.App.3d 696, 702, 224 Cal.Rptr. 903.)
It is settled that a city's zoning determination is entitled to great deference. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 605, 135 Cal.Rptr. 41, 557 P.2d 473; Mira Development Corp., supra, 205 Cal.App.3d at p. 1213, 252 Cal.Rptr. 825; Las Virgenes Homeowners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 304–305, 223 Cal.Rptr. 18; Willett & Crane v. City of Palos etc. Estates (1950) 96 Cal.App.2d 757, 761–762, 216 P.2d 85.) Further, a city council's finding of consistency with the general plan may be reversed only if that finding is unreasonable. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243, 242 Cal.Rptr. 37.)
d. Application here.
The present record demonstrates zoning so inconsistent with the General Plan as to override the deference normally accorded such an ordinance. If zoning which prohibits more than two residences per acre is inconsistent with a general plan which permits four (deBottari, supra, 171 Cal.App.3d at p. 1212, 217 Cal.Rptr. 790), then zoning which prohibits commercial development must, perforce, be inconsistent with a general plan which permits such development.
The trial court therefore properly found the City's residential suburban zoning of the property invalid because such zoning prohibits all commercial uses.
We have considered amicus curiae Hillside's argument that the NOC designation was tentative, based upon the stated uncertainty about the future of the property due to its location next to residential, commercial and agricultural uses. Hillside urges the City's determination to zone the property for residential suburban use is consistent with the General Plan and neighborhood concerns that a commercial office complex would be incompatible with the surrounding area.
Although the WRA property has presented a unique planning problem which required the weighing of competing interests, the 1984 District Plan cannot be read as tentative on the subject of WRA's property. Rather, it indicates numerous alternatives had been considered and rejected in favor of the NOC designation. Because residential suburban zoning prohibits the category of use contemplated in the General Plan, it is inconsistent with the General Plan and was invalid when passed. (Lesher Communications, Inc., supra, 52 Cal.3d at p. 541, 277 Cal.Rptr. 1, 802 P.2d 317.)
e. We reject the City's hierarchy approach to consistency.
The City and amicus curiae Hillside argue the residential suburban zoning is consistent with the General Plan because, under the City's hierarchy scheme of zoning, any designated use of a property incorporates all less intense uses. The City asserts each of the zones allowed within NOC, i.e., CR, C1, C1.5, C4 and P, allow both commercial and residential uses.
Hillside urges adoption of the hierarchy theory because it has been employed by the parties in what has been referred to as the City's AB 283 program. That program resulted from litigation occasioned by passage of AB 283. Pursuant to AB 283 the Legislature enacted section 65860, subdivision (d) which made the consistency requirement applicable to charter cities with population of 2 million or more. Only one charter city, Los Angeles, fit that definition. (See, City of Los Angeles v. State of California (1982) 138 Cal.App.3d 526, 187 Cal.Rptr. 893.)
Hillside filed a lawsuit, Federation of Hillside and Canyon Associations, Inc. v. City of Los Angeles, Los Angeles Superior Court Case No. C526616, to force the City to comply with the consistency requirement. That lawsuit involves the rezoning of thousands of parcels in the City. Hillside alleges the hierarchy theory has been relied upon in that process to achieve consistency.
Additionally, during the pendency of the instant appeal, the City has attempted to set its hierarchy theory in concrete by adding an amendment to each of the 35 District Plans which make up the land use element of the City's General Plan.8
The trial court did not address the hierarchy theory and specifically did not decide whether the City “may allow a ‘lower’ use.”
The City and amicus curiae now repeat the hierarchy argument on appeal. Because of the City's continued and forceful reliance on its hierarchy theory to justify residential zoning of an area designated NOC in its General Plan, it is incumbent upon this court to point out the logical fallacy of the theory in application.
The hierarchy theory would grant the City the authority to prohibit an entire category of land use which is specifically permitted and envisioned by the General Plan. However, the City cannot pass a zoning ordinance which is inconsistent with the General Plan. Such zoning is invalid when enacted. Thus, the hierarchy theory improperly would allow the City to amend its General Plan through the enactment of inconsistent zoning ordinances.
This result violates the directive of Lesher which held general plans cannot be amended to conform to zoning ordinances. “The tail does not wag the dog.” (Lesher Communications, Inc., supra, 52 Cal.3d at p. 541, 277 Cal.Rptr. 1, 802 P.2d 317.)
We appreciate the City's hierarchy theory would allow maximum flexibility in land use planning and would do away with the need to amend the General Plan. However, its virtue is precisely its vice. A general plan which designates property for intense development with the contemplation that designation may thereafter be prohibited through zoning is, in effect, no general plan, and suffers the logical infirmity set forth above. Such a general plan certainly does not comport with the concept of a charter for land use which should provide guidance, continuity and stability. The hierarchy theory, in essence, repeals the consistency requirement.
In order for zoning to be consistent with the General Plan, at minimum, it cannot prohibit an entire category of use which is permitted by the General Plan. Whether a less intense use is included within a more intense use, or whether such a use may be permitted is beside the point.
The City's recent amendment of its General Plan to include the hierarchy theory does not alter this result. “A city may not adopt ordinances and regulations which conflict with state Planning and Zoning Law. [Citations.]” (Lesher Communications, Inc., supra, 52 Cal.3d at p. 547, 277 Cal.Rptr. 1, 802 P.2d 317.)
Based upon the principles set forth in the state Planning and Zoning Law, the statutory scheme governing land use, case law precedent, and the logical and inherent incongruity of the hierarchy theory, we reject its application here.
f. Based upon the situation presented here, the trial court properly directed the City to achieve consistency.
The third order of the trial court commanded the City “to perform their statutory duty pursuant to Government Code § 65860(c) ․ to bring the zoning into consistency with the General Plan within 30 days from September 11, 1990. The zoning ordinance enacted shall place the ․ property into one or more of the following zoning classifications: CR, C1, C1.5, C4, or P, or a new zoning classification which is within the scope of these five zones, as provided in the General Plan.”
The City claims the trial court's order improperly relied upon section 65860, subdivision (c).
Subdivision (a) of section 65860 sets forth the consistency requirement; subdivision (b) allows any resident or property owner to sue to force compliance with the consistency requirement; and subdivision (c) requires a city to amend its zoning ordinances within a reasonable time to achieve consistency where inconsistency has been created by reason of amendment of the general plan.
The City argues subdivision (c) does not apply here because the City has not amended its General Plan.9 WRA responds the City amended the General Plan in 1984 and thereafter failed to bring the zoning into consistency despite repeated assurances it would do so.
We agree the residential suburban zoning in issue here is not inconsistent with the General Plan because of an amendment to the General Plan. Therefore, subdivision (c), of section 65860, is not the operative section under which WRA is entitled to relief. However, pursuant to subdivision (b) of section 65860, WRA is entitled to an order directing the City to achieve consistency between the zoning and the General Plan.
Based upon the foregoing discussion of consistency and our rejection of the City's hierarchy theory, the trial court's order did no more than that. A writ of mandate may issue “to compel the performance of an act which the law specially enjoins․” (Code Civ.Proc., § 1085; Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 355, 176 Cal.Rptr. 620.) The trial court's directive that the City zone the property “CR, C1, C1.5, C4, or P, or a new zoning classification which is within the scope of these five zones, as provided in the General Plan” is appropriate in this case. The City's refusal to comply with the consistency requirement necessitates a remedy.
Nor does the trial court's order usurp the City's legislative power. After the City acts to comply with the trial court's order, it may amend its General Plan and, thereafter, enact new zoning which is consistent with the General Plan as amended.
Indeed, the statutory right of a city to amend a general plan four times in one year drastically detracts from the concept of the general plan as a charter for land use. (§ 65358, subd. (b).) To paraphrase Lesher, the issue may be not if the tail is wagging the dog but whether there exists a dog at all. By that we mean, the City's ability to make its General Plan a moving target so undermines its use as a planning device as to “ ‘destroy the general plan as a tool for the comprehensive development of the community as a whole.’ [Citation.]” Lesher Communications, Inc., supra, 52 Cal.3d at p. 541, 277 Cal.Rptr. 1, 802 P.2d 317.) The state of the law has left this court with a sense of frustration in trying to resolve important issues raised herein with any degree of certainty.
However, we have no difficulty concluding the trial court's third order properly directed the City to zone WRA's property in a manner that is consistent with the General Plan. Nor do we believe this order usurped the City's legislative power or violated the separation of powers doctrine.
3. The City's lack of jurisdiction argument is meritless.
The City argues the trial court lacked jurisdiction to make its third order because the City appealed hours before the hearing at which the trial court issued that order. By this argument the City seeks to achieve the benefit of the second order which did not dictate the manner in which the City had to achieve consistency.
WRA advances several bases upon which this court should reject the City's claim the trial court lacked jurisdiction. WRA asserts the trial court had jurisdiction to hear the motion because it had been set and noticed before the City filed the appeal, the trial court retained jurisdiction to modify a writ it had issued, and the City appealed from a non-appealable order. Most compelling is WRA's argument that, in equity, the City cannot be heard to deprive the trial court of jurisdiction to correct an error the City induced by its first motion for reconsideration.
For all these reasons, we conclude the trial court had jurisdiction to entertain the second motion for reconsideration and to issue its third order.
4. Statute of limitations.
The City argues WRA's action is barred by section 65009, subdivision (c), which states “no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 120 days after the legislative body's decision: ․ (2) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.”
The City claims WRA did not challenge the City's RA and Al zoning action until 1991 even though that zoning had been in place before, and for five years after, WRA purchased the property.
WRA responds, and we agree, this action does not contest the RA and Al zoning on the property but the residential suburban zoning enacted in 1991. The action therefore was timely.
The residential suburban zoning enacted by the City is not consistent with the General Plan. The ordinance, therefore, was invalid when passed. (Lesher Communications, Inc., supra, 52 Cal.3d at p. 544, 277 Cal.Rptr. 1, 802 P.2d 317.) The trial court properly directed the City to achieve the mandated consistency.
The writ of supersedeas previously granted is vacated.
The order issuing the writ is affirmed.
Each side to bear respective costs.
1. On September 20, 1990, the City filed a petition for writ of supersedeas with respect to the trial court's ruling in issue here. On November 29, 1990, this court granted the writ, stayed the judgment entered below and set the matter for oral argument.The instant appeal represents a small part of a lawsuit which is scheduled for trial as this opinion is filed.
2. In its reply brief the City advised this court the three individual defendants have been dismissed from the case by virtue of a second amended complaint filed April 18, 1991.
3. All further unspecified statutory references are to the Government Code.
4. The number which follows the zone designation indicates the “height district designation.” (Los Angeles Mun.Code, § 12.04(C).) Portions of Height District No. 1 may be designated as being in an “L” (Limited), “VL” (Very Limited), or “XL” (Extra Limited) Height District. In these districts no building may exceed 6, 3, or 2 stories, respectively. (Los Angeles Mun.Code, § 12.21.1(A)(1).)The designation (T) before a zone indicates a “Tentative classification pending the recordation of a Final Map․ [¶] While property remains in such “T” Tentative Classification, ․ such property may continue to be used only for the purposes permitted in the zone applicable to the property prior to its “T” Tentative classification; ․” (Los Angeles Mun.Code, § 12.32(A).)The designation (Q), Qualified Classification, indicates “the property may not be utilized for all the uses ordinarily permitted in a particular zone classification and/or that the development of the site shall conform to certain specified standards,․” (Los Angeles Mun.Code, § 12.32(J).)
5. Section 65860, subdivision (c), provides: “In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such a plan, or to any element of such a plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended.”
6. Hillside is involved in extensive litigation over the consistency requirement with the City and is a party to a stipulated judgment which requires the City to zone some 300,000 parcels of property consistently with the General Plan.
7. General Plan Guidelines are published by the State of California Office of Planning and Research. Although the General Plan Guidelines are advisory, they have been held to provide an aid to interpretation. (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 702, 188 Cal.Rptr. 233.)
8. The amendment, adopted on March 27, 1991, provides, in part: “Each plan category permits all indicated corresponding zones as well as those zones referenced in the Los Angeles Municipal Code (LAMC) as permitted by such zones unless further restricted by adopted Specific Plans, specific conditions and/or limitations of project approval, plan footnotes or the Plan map or text notations.”
9. In addressing this contention we disregard the March 27, 1991 amendment which purported to add the City's hierarchy theory to each of the 35 District Plans which make up the land use element of the General Plan. That amendment related only to the City's interpretation of the consistency requirement and made no substantive change in any of the district plans. The enactment of the 1984 District Plan is the last amendment to the General Plan which affects the use of the WRA property.
KLEIN, Presiding Justice.
DANIELSON and CROSKEY, JJ., concur.
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Docket No: Civ. No. B052835.*
Decided: December 31, 1991
Court: Court of Appeal, Second District, Division 3, California.
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