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Orange Citizens for Parks and Recreations, v. Superior Court (Milan REI IV LLC)

California Court of Appeals, Fourth District, Third Division

July 10, 2013

THE SUPERIOR COURT OF ORANGE COUNTY, Respondent MILAN REI IV LLC et al., Real Parties in Interest. ORANGE CITIZENS FOR PARKS AND RECREATION et al., Plaintiffs and Appellants,
MILAN REI IV LLC et al., Defendants and Respondents.

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, No. 30-2011-00494437 Robert Moss, Judge.

Shute, Mihaly & Weinberger, Rachel B. Hooper, Robert S. Perlmutter, Susannah T. French; and Daniel P. Selmi for Petitioners, Plaintiffs, and Appellants Orange Citizens for Parks and Recreation and Orange Park Acres.

Woodruff, Spradlin & Smart and David A. DeBerry for Real Parties in Interest, Defendants, and Respondents Mary Murphy, City Clerk of the City of Orange, the City of Orange City Council, and City of Orange.

Duane Morris, Colin L. Pearce, David E. Watson, and Heather U. Guerena for Real Party in Interest, Defendant and Respondent Milan REI IV, LLC.

Nicholas S. Chrisos, County Counsel and Leon J. Page, Deputy County Counsel for Real Party in Interest, Defendant, and Respondent Neal Kelley, Orange County Registrar of Voters.



Milan REI IV, LLC (Milan) is the current owner of 51 acres of land (the Property) in the Orange Park Acres neighborhood of the City of Orange (the City). Between 1968 and 2006, the Property featured a nine-hole golf course and other recreational facilities. In 2007, Milan applied to the City to develop a residential subdivision on the golf course portion of the Property. Dubbed “Ridgeline Equestrian Estates, ” the proposed development consists of 39 homes, each built on a one-acre lot, plus various equestrian amenities (the Project).

The City of Orange City Council (the City Council) ultimately approved the Project in 2011. In connection therewith, the City Council adopted a resolution amending the City’s general plan (General Plan Amendment). Among other things, the General Plan Amendment changed the existing designation of the Property on the general plan land use policy map (Policy Map) from “Open Space” to “Other Open Space & Low Density.” In response to petitioning activity by its citizens, the City held a referendum on the General Plan Amendment.[1] On November 6, 2012, participating voters defeated Measure FF, thereby nullifying the General Plan Amendment.

The petitioners, plaintiffs and appellants, [2] whom we shall refer to collectively as Orange Citizens, assert that the referendum essentially undid the City Council’s approval of the Project. Orange Citizens’ argument is straightforward: (1) a municipality’s general plan must be consistent with any proposed development; (2) the City’s general plan in 2010 was inconsistent with the Project, as reflected by the Policy Map designation of the Property (“Open Space”); (3) an amendment of the City’s general plan was a necessary prerequisite for approval of the Project; and (4) the General Plan Amendment, which was the City Council’s attempt to satisfy this necessary condition, failed at the ballot box. (See Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 783 [development agreement voided because project approval was inconsistent with general plan as it existed before a general plan amendment, which was made ineffective by referendum].)

Milan, the City, and the City Council contend that the City’s general plan since 1973 has always been to allow low density residential development on the Property. As repeatedly found by the City Council in connection with its approval of the Project, the City’s general plan was already consistent with low-density residential units being constructed on the Property, even without the General Plan Amendment and notwithstanding the “Open Space” designation on the Policy Map. The General Plan Amendment simply corrected errors on the Policy Map (and in other documents). Regardless of whether these errors were corrected, the Project was consistent with the City’s general plan. The trial court agreed with this position.

Because we conclude the City Council acted reasonably in making its consistency findings, we affirm the trial court’s judgment with regard to denying Orange Citizens’ petition for writ of mandate to set aside certain acts of the City Council (i.e., entering into a development agreement with Milan and changing the Property’s zoning classification). We reverse the judgment with regard to the issuance of a writ of mandate commanding the City to remove the referendum from the ballot, a portion of the judgment already mooted by our previous stay of the trial court’s writ of mandate.


Before reciting the relevant facts and procedural history, we begin with an outline of the basic structure of local planning law. This divergence from our usual practice helps to illustrate the significance of the history of the City’s planning efforts in Orange Park Acres.

The Planning and Zoning Law (Gov. Code, § 65000 et seq.)[3] channels and limits local governments’ exercise of the police power under article XI, section 7 of the California Constitution. (See Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1181-1182.) City councils and county boards of supervisors (i.e., local “legislative bod[ies]”) possess a “planning agency with the powers necessary to carry out the purposes” of the Planning and Zoning Law. (§ 65100; see 1 Cal. Land Use Practice (Cont.Ed.Bar. 2010) Overview of Land use Regulations, § 1.20, p. 19.) Each “legislative body... shall by ordinance assign the functions of the planning agency to a planning department, one or more planning commissions, administrative bodies or hearing officers, the legislative body itself, or any combination thereof, as it deems appropriate and necessary.” (§ 65100.) In the case before us, the relevant legislative body is the City Council, which apparently assigned some of its planning agency powers to the City of Orange Planning Commission (Planning Commission).

Putting to one side the question of federal or state preemption of local planning authority, the hierarchy of local land use regulation is structured from top to bottom to include: (1) the general plan; (2) any specific plan(s); (3) the zoning code; (4) specific relief from the zoning code — e.g., conditional use permits or variances; (5) subdivision maps; and (6) building permits. (1 Land Use Practice, supra, Overview of land use Regulation, § 1.12, p. 14.)

General Plans

“Each planning agency shall prepare and the legislative body of each county and city shall adopt a comprehensive, long-term general plan for the physical development of the county or city, and of any land outside its boundaries which in the planning agency’s judgment bears relation to its planning.” (§ 65300; see Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 535 (Lesher) [“The Planning and Zoning Law... [citation] mandates the adoption of a general plan by every city and every county in this state”], fn. omitted.) The general plan adopted by a legislative body is “a ‘“constitution” for future development’ [citation] located at the top of ‘the hierarchy of local government law regulating land use’ [citation].” (DeVita v. County of Napa (1995) 9 Cal.4th 763, 773 (DeVita).) “The planning law... compels cities and counties to undergo the discipline of drafting a master plan to guide future local land use decisions.” (Ibid.)

“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.” (§ 65302.) “The plan must include seven elements — land use, circulation, conservation, housing, noise, safety and open space — and address each of these elements in whatever level of detail local conditions require [citation].” (DeVita, supra, 9 Cal.4th at p. 773.) 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, including agriculture, natural resources, recreation, and enjoyment of scenic beauty, education, public buildings and grounds, solid and liquid waste disposal facilities, and other categories of public and private uses of land.” (§ 65302, subd. (a).) The open space element requires a “local open-space plan for the comprehensive and long-range preservation and conservation of open-space land within its jurisdiction.” (§ 65563.) “‘Open-space land’ is any parcel or area of land or water that is essentially unimproved and devoted to an open-space use as defined in this section, and that is designated on a local, regional or state open-space plan as any of the following: [¶] (1) Open space for the preservation of natural resources.... [¶] (2) Open space for the managed production of resources.... [¶] (3) Open space for outdoor recreation....” (§ 65560, subd. (b).)

“The general plan may be adopted in any format deemed appropriate or convenient by the legislative body, including the combining of elements.” (§ 65301, subd. (a).) “The general plan may be adopted as a single document or as a group of documentsrelating to subjects or geographic segments of the planning area.” (Id., subd. (b).) “[T]he Legislature intends that the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” (§ 65300.5.)

“If it deems it to be in the public interest, the legislative body may amend all or part of an adopted general plan.” (§ 65358, subd. (a); see Lesher, supra, 52 Cal.3d at pp. 538-539 [describing procedural requirements of adoption or amendment of general plan].) Whether a city or county is adopting a new general plan or amending an existing general plan, it must conduct public hearings (§§ 65351, 65355) and “refer the proposed action to” certain interested public entities (§ 65352, subd. (a)). “The planning commission shall make a written recommendation on the adoption or amendment of a general plan.” (§ 65354.) “The legislative body shall adopt or amend a general plan by resolution, which resolution shall be adopted by the affirmative vote of not less than a majority of the total membership of the legislative body.” (§ 65356.) “Copies of the documents adopting or amending the general plan, including the diagrams and text, shall be made available to the general public” to inspect or to keep for a reasonable fee. (§ 65357, subd. (b)(1)(2).)

Specific Plans

“After the legislative body has adopted a general plan, the planning agency may, or if so directed by the legislative body, shall, prepare specific plans for the systematic implementation of the general plan for all or part of the area covered by the general plan.” (§ 65450.) “A specific plan shall be prepared, adopted, and amended in the same manner as a general plan, except that a specific plan may be adopted by resolution or by ordinance and may be amended as often as deemed necessary by the legislative body.” (§ 65453, subd. (a).)

Specific plans include many of the same features as general plans. (§ 65451, subd. (a).) “The specific plan shall include a statement of the relationship of the specific plan to the general plan.” (Id., subd. (b).) “No specific plan may be adopted or amended unless the proposed plan or amendment is consistent with the general plan.” (§ 65454.) “Any specific plan or other plan of the city or county that is applicable to the same areas or matters affected by a general plan amendment shall be reviewed and amended as necessary to make the specific or other plan consistent with the general plan.” (§ 65359.)

Zoning Law

“The legislative body of any county or city may... adopt ordinances that do any of the following: [¶] (a) Regulate the use of buildings, structures, and land as between industry, business, residences, open space, including agriculture, recreation, enjoyment of scenic beauty, use of natural resources, and other purposes.” (§ 65850.) “For such purposes the legislative body may divide a county, a city, or portions thereof, into zones of the number, shape and area it deems best suited to carry out the purpose of” the zoning law. (§ 65851.) “All such regulations shall be uniform for each... use of land throughout each zone, but the regulation in one type of zone may differ from those in other types of zones.” (§ 65852.)

“County or city zoning ordinances shall be consistent with the general plan....” (§ 65860, subd. (a).) “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. [Citation.] 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.” (Lesher, supra, 52 Cal.3d at p. 541.)

Approval of Development Projects

“‘[T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements.’” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.) “The consistency doctrine has been described as ‘the linchpin of California’s land use and development laws; it is the principle which infuse[s] the concept of planned growth with the force of law.’” (Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 994.) “A 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.”’” “A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a subdivision development must be ‘compatible with’ the objectives, policies, general land uses and programs specified in the general plan.” (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1336.)

“A development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.” (§ 65867.5, subd. (b).) “No local agency shall approve a tentative map... unless the legislative body finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the general plan... or any specific plan....” (§ 66473.5.)


Orange Park Acres is a neighborhood in Orange County with a semi-rural character, exemplified by large lot sizes and equestrian activities. Portions of Orange Park Acres are located within the City, while the remainder is unincorporated land within the jurisdiction of the County of Orange.

The Project is sited at the Property (51.1 acres located within Orange Park Acres that once featured a golf course, tennis courts, and a clubhouse). In addition to 39 acres of residences, the Project provides for a 2.3 acre equestrian arena and new equestrian trails. Since 1985, the entire Property has been part of the City. But the City exercised its planning authority over the Property even earlier, as the Property fell within the City’s “sphere of influence.” (See Merritt v. City of Pleasanton (2001) 89 Cal.App.4th 1032, 1034; §§ 65300, 65859, subd. (a).)

The question presented in this case appears deceptively simple: Is the development of low-density residential estates on the Property consistent with the City’s general plan? But a review of the voluminous administrative record in this case reveals contradictions and ambiguities that call into question the possibility of definitively determining the land use designation of the Property in the general plan.

The City’s Adoption of a Plan for Orange Park Acres in 1973

On May 16, 1973, a development committee for Orange Park Acres was established to address controversies arising between stakeholders in the community. The committee included members representing the City, the county, residents of Orange Park Acres, major landowners, and real estate developers. The committee collected information, set objectives, and evaluated competing policies. The area under study included 594 acres within the City and 1127 acres within unincorporated Orange County.

The tangible product of the committee’s work was a September 1973 document entitled “Orange Park Acres Specific Plan.”[4] After detailing information about Orange Park Acres that had been gathered and discussing several alternative concept plans, the document set forth a “Proposed Specific Plan.” The proposed plan listed goals, objectives, and policies to preserve and enhance the community. The concept of the “Specific Plan” was to mix low-density, one acre residential lots with clusters of denser single-family housing. The “Orange Park Acres Specific Plan” also sought to preserve existing and establish new open space, including trails, parks, hillside slopes, and greenbelts.

As for the Property, “The Plan advocates the permanent retention of the 34 acre golf course within Orange Park Acres. If the private ownership cannot sustain a [viable] economic return, public acquisition is suggested in order to preserve a substantial amenity for recreation and open space within the area.”[5] “In addition to the golf course, there is a four acre Tennis Club and the seven acre... Country Club to be sustained with the proposed Plan.” The “Orange Park Acres Land Use and Circulation Plan, ” a map included in the proposed plan, designated the Property as “Golf Course” (the golf course portion) and “Local Parks” (the remainder of the Property) within the “Open Space & Recreation” category of uses.

On November 19, 1973, the Planning Commission held a public hearing to consider the adoption of the “Orange Park Acres Plan as a part of the land use element of the General Plan encompassing a portion of incorporated territory and unincorporated territory in the General Planning Area of the City....” By Resolution No. PC-85-73, the Planning Commission recommended the adoption of the “Orange Park Acres Plan, ” although the Planning Commission disapproved of the circulation element and added several amendments. In adopting the resolution, the Planning Commission found that “the Orange Park Acres Plan meets General Plan criteria set forth in Section 65302[, subdivision ](a).... Sections 65352 and 65357 further authorize the Planning Commission and legislative body to adopt General Plan elements and amendments for all or a portion of a city and a surrounding planning area by resolution....” The Planning Commission further resolved to direct its staff “to prepare implementation ordinances or resolutions... consistent with this resolution and the Orange Park Acres Plan.”

One of the Planning Commission’s proposed amendments was to “[d]esignate the Golf Course as Other Open Space and Low Density (1 acre).” James A. Jackman, who was a member of the Orange Park Acres committee and the City Council at the time, provided insight into the purpose of this amendment at a May 2011 public hearing: “The concern of the committee at that time was really what happens if the golf course no longer is the function of the golf course? What are we to do next? And the answer was we were worried that it would be developed as commercial which was inconsistent with the... large parcel of land right in the center of Orange Park Acres, right in the very heart of the area that we were planning and we said it has to be the one-acre estates.” Jackman added that the 2011 City Council had “an opportunity to put in a development that we [the 1973 City Council] would have, in my opinion, have approved in a heartbeat had it come before us back in 1973, had the golf course wanted to go out at that time.”

On December 26, 1973, the City Council adopted Resolution No. 3915, which resolved to uphold the recommendation of the Planning Commission to adopt and approve the “General Plan for the Orange Park Acres area... as set forth in that certain plan... dated September 1973 and as amended by the Planning Commission on November 19, 1973... as a part of the land use element of the City... and that copies of this plan be maintained on file... in order that this plan may be readily accessible to members of the public.” (Italics added.) Resolution No. 3915 did not explicitly set forth the text of the amendments added by the Planning Commission. Resolution No. 3915 made findings that the Orange Park Acres plan met the requirements of a general plan under the Government Code and was to be considered “part of the required land use element to be included in a General Plan for the City....”

In sum, as of December 1973, the Planning Commission and City Council had resolved to include the amended Orange Park Acres plan as part of the City’s general plan. The relevant amendment for our purposes is the designation of the golf course portion of the Property as “Other Open Space and Low Density (1 acre).” But the record does not include a copy of the Orange Park Acres plan or a general plan map from the 1970’s reflecting this amended designation of the Property. It may be, as speculated by the City in an environmental planning document prepared in connection with the Project, that “the textual changes recommended by the Planning Commission and approved by the City Council were never entered into any official copy of the” Orange Park Acres plan. Milan’s attorney acknowledged in a May 2011 letter to the City Council that the copy of the Orange Park Acres plan readily available to the public (at least in 2011) “includes the City Council’s adopting resolution from 1973 which reflects incorporation of the Planning Commission’s changes, but does not include the Planning Commission’s recommended changes to the text ...

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