Denham, LLC v. City of Richmond

          Contra Costa County Super. Ct. No. MSN17-0669, Trial Judge: Hon. Barry Goode.

          Counsel for Appellant: Zach Cowan

          Counsel for Respondent: Cox, Castle & Nicholson LLP, Andrew B. Sabey, and Ashley Weinstein-Carnes

          Counsel for Defendant: Caolantuono, Highsmith & Whatley, PC, Holly O. Whatley.

          TUCHER, J.

         After the City Council of the City of Richmond (the City) adopted an initiative amending its general plan to prohibit residential development on a stretch of hillside land, property owners affected by the initiative brought this action challenging the initiative. The trial court concluded the initiative rendered the City's general plan internally inconsistent and directed the City to vacate its adoption of the initiative. We agree with the trial court that the initiative caused the general plan to become impermissibly inconsistent, but disagree as to the appropriate remedy. We shall reverse the judgment and direct the trial court to issue a writ of mandate ordering the City to cure the inconsistency.

         GENERAL PLAN

         To set the stage, we begin with a brief discussion of the role of a general plan. Under state law, each city and county must “ ‘adopt a comprehensive, long-term general plan' for its own ‘physical development.' ” (Orange Citizens for Parks & Recreation v. Superior Court (2016) 2 Cal.5th 141, 152 (Orange Citizens), citing Gov. Code, § 65300.)^[1] A general plan must include eight mandatory elements: land use, housing, conservation, open-space, circulation, noise, safety, and environmental justice. (§ 65302.) “Because of its broad scope, long-range perspective, and primacy over subsidiary land-use decisions, the ‘general plan has been aptly described as the “constitution for all future developments” within the city or county.' ” (Orange Citizens, supra, 2 Cal.5th at p. 152.)

         Virtually any local decision affecting land use and development must be consistent with the general plan and its elements. (Citizens for Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 571.) The general plan must be internally consistent; that is, the general plan and its elements must “comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” (§ 65300.5.) After all, “[a] document that, on its face, displays substantial contradictions and inconsistencies cannot serve as an effective plan because those subject to the plan cannot tell what it says should happen or not happen.” (Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 97 (Concerned Citizens).) Of particular importance to this case, “amendments to the general plan must be internally consistent and cannot cause the general plan to become internally inconsistent.” (Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 18.)

         FACTUAL AND PROCEDURAL BACKGROUND

         The plaintiffs in this action own property in the Richmond hills that they will not be able to develop into residential neighborhoods as a result of the Richmond Hills Initiative. Their property is designated “Hillside Residential” in the Richmond General Plan 2030 (the general plan).

         The land use element of the general plan defines various land use classifications, and it maps out where in the City each should occur. The Hillside Residential classification, one of several residential land use classifications, is defined to include “attached and detached single-family housing on subdivided parcels and clustered multi-family residential on developable portions of hillside parcels below the 400-foot elevation.”^[2] The classification allows a density of up to five dwelling units per acre and building height of up to 35 feet.

         The Richmond Hills Initiative (the initiative) was signed by more than ten percent of the City's registered voters and filed with the City on November 10, 2016. In such a circumstance, section 9215 of the Elections Code gives a city the choice to adopt the initiative ordinance without alteration, submit it to the voters, or refer the matter to a city agency for a report. (See Elec. Code, § 9212.) At a public hearing on January 24, 2017, the City voted to adopt the initiative without alteration.

         The initiative states that it “amends the Richmond General Plan by limiting development and land uses in the Richmond Hills....” The area subject to the initiative, or the “Richmond Hills Initiative Area, ” is described by identifying 38 parcels by assessor's parcel numbers. Much of the initiative area includes property designated “Hillside Residential” in the general plan.

         The initiative adds provisions to the general plan, specifically to the open-space element of the general plan. Among the pertinent provisions, the initiative provides that the minimum parcel size in the initiative area is 20 acres; that the maximum floor area for all buildings in a parcel may not exceed 10, 000 square feet; and that if residences and residential accessory buildings are permitted, they may not exceed 5, 000 square feet of the 10, 000 square foot maximum.

         The initiative prohibits all residential development in the initiative area, unless a court finds this prohibition unconstitutional. Specifically, under the heading “Permissible Uses, ” the initiative allows in the initiative area “[t]he following uses only, and their normal and appropriate accessory uses and structures”: agriculture; the processing, packaging, storage, or sale of agriculture produce; the rearing, boarding, or sale of horses and other animals; low-intensity outdoor recreation and exercise; “institutional and other non-profit uses that predominantly serve” the local area; “small facilities for convalescence, rehabilitation, and hospice care for not more than six patients each”; government and public utility uses; and “short-term events related to agriculture, animals, or outdoor recreation.” Notably, “[r]esidences, including mobile dwelling units, and residential accessory buildings are not permitted under this subsection.” (Italics added.) However, if a court finds that this prohibition on residential use constitutes a taking, one single-family home may be built on each parcel (or 20 acres of a parcel), together with normal accessory uses and structures.

         The initiative also includes a number of specific amendments to the general plan, which it states are “made to avoid any inconsistency in the General Plan and with State housing law.” These consist of minor amendments to two paragraphs of the land use element and more extensive amendments to the housing element. The changes to the land use element do not change the definition of “Hillside Residential” or the maps applying this classification to most of the initiative area. The changes to the housing element include removing many of the parcels in the initiative area from the inventory of vacant land available for housing development; reducing the tally of developable land in the City zoned for residential and mixed-use development from 228 acres to 148 acres; and specifying the Hilltop Mall area as suitable for high-density residential development.

         Two property owners in the initiative area, Denham, LLC, and Nikta, LLC, brought a petition for writ of mandate and complaint for damages challenging the initiative on a variety of grounds, and another property owner, Gray1 Forest Green, LLC (Gray1), intervened as a petitioner. The petition named the City and its City Council as respondents and defendants, and the Sierra Club was allowed to intervene to defend the initiative. After proceedings not at issue in this appeal, the trial court concluded the initiative was inconsistent with the general plan and could not be given effect.^[3] It entered judgment ...