California Court of Appeals, Fourth District, Third Division
Appeals from a judgment in No. G047326 and a postjudgment order in No. G048024 of the Superior Court of Orange County, No. 30-2011-00467132 Gail Andrea Andler,
Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant in Nos. G047326 and G048024.
Nicholas S. Chrisos, County Counsel, Roger Freeman and Nicole M. Walsh, Deputy County Counsel, for Defendants and Appellants in No. G047326.
Manatt, Phelps & Phillips, Jack S. Yeh and Keli N. Osaki for Real Parties in Interest and Appellants in No. G047326 and for Real Parties in Interest and Respondents in No. G048024.
No appearance for Defendants and Respondents in No. G048024.
The Roman Catholic Diocese of Orange (the Diocese) and Kisco Senior Living, LLC (Kisco), desire to build a living community for senior citizens on a parcel of real property, owned by the Diocese (the Project), which is located in an unincorporated area of Orange County (the County). The County Board of Supervisors (the Board) created a new zoning definition for senior residential housing, and applied it to the Project site; found the Project was consistent with the County’s general plan and the “North Tustin Specific Plan” (sometimes referred to as NTSP); and found the Project complied with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). Foothill Communities Coalition, an unincorporated association of grassroots community groups and area homeowners (Foothill), challenged the Board’s decisions by means of a petition for a peremptory writ of mandate. The trial court entered judgment in favor of Foothill, and issued the requested writ.
Appellants challenge the trial court’s conclusion that the Board’s acts constitute impermissible spot zoning. We publish this case to clarify the law regarding spot zoning in two respects. First, spot zoning may occur whether a small parcel of property is subject to more or less restrictive zoning than the surrounding properties. Second, to determine whether impermissible spot zoning has occurred, a court is required to conduct a two-part analysis. After determining that spot zoning has actually occurred, the court must determine whether the record shows the spot zoning is in the public interest.
In this case, applying the required standard of review, which is deferential to the Board, we conclude the Board’s findings that the Project would be consistent with the County’s general plan and with the North Tustin Specific Plan are supported by substantial evidence. The creation of the new senior residential housing zone and its application to the Project site were not arbitrary or capricious, or lacking in evidentiary support. Although the Board’s actions constituted spot zoning, the spot zoning was permissible. The trial court erred in entering judgment in Foothill’s favor and in issuing the writ of mandate. We therefore reverse. As explained in detail, post, we remand the matter for further consideration by the trial court of issues relating to CEQA.
Our reversal of the judgment renders moot Foothill’s appeal challenging the trial court’s refusal to award it attorney fees as the prevailing party. (Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1206.)
Statement of Facts, Chronology, and Procedural History
In 1956, the Diocese received a gift of a 7.25 acre parcel of undeveloped property in the North Tustin area of the County. In 2003, the Diocese decided to develop the property as a senior residential community. The Diocese retained senior living communities developer Kisco to design and implement the Project. In January 2009, the Diocese and Kisco submitted to the County a project design proposing 153 senior living units.
The Project site is located within the area covered by the North Tustin Specific Plan, which regulates the development of property within its boundaries and was adopted by the Board in 1982. Under the North Tustin Specific Plan, the Project site is designated as residential single family. In July 2009, the County issued a notice of preparation for the Project’s environmental impact report (EIR). The draft EIR was released in May 2010 for a 45 day public comment period. The final EIR was released by the County in December 2010.
In January 2011, the County Planning Commission conducted a public hearing on the Project, at the end of which it recommended that the Board approve the Project and certify the final EIR. The Board conducted a public hearing on the Project, after which it issued one ordinance and two resolutions approving the Project and making necessary changes to the North Tustin Specific Plan to permit its development. In ordinance No. 11 008, the Board amended the North Tustin Specific Plan to add a new zoning district for senior residential housing and to change the land use district for the Project site to the new senior residential housing designation. In resolution No. 11 038, the Board certified the EIR for the Project as complete, accurate, and in compliance with the requirements of CEQA. And in resolution No. 11 039, the Board approved both a use permit for the Project as a senior living facility, and a site development permit. In March 2011, the Board amended the North Tustin Specific Plan to create a new zoning district—the senior residential housing land use district—which it applied to the Project site. The same month, the County filed a notice of determination of the Board’s approval of the Project and certification of the final EIR.
In April 2011, Foothill filed a verified petition for a writ of mandate and complaint for declaratory relief against the County and the Board. In March 2012, the trial court issued a minute order granting the petition. Judgment was entered. Foothill filed a motion for a new trial (in order to clarify whether the writ and the judgment resolved the CEQA issues raised in the petition), which was denied. Foothill, the Diocese and Kisco, and the County and the Board filed separate, timely notices of appeal.
Standard of Review
“The ‘rezoning of property, even a single parcel, is generally considered to be a quasi-legislative act’ thus ‘subject to review under ordinary mandamus.’ The standard for review of a quasi legislative act is whether the action was ‘arbitrary or capricious or totally lacking in evidentiary support.’ [Citations.]” (Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th 1256, 1268; see Arnel Development Co. v. ...