California Court of Appeals, First District, Fourth Division
[254
Cal.Rptr.3d 290] Trial Court: Contra Costa County Superior
Court, Trial Judge: Hon. Barry Goode (Contra Costa County
Super. Ct. No. MSN17-0669)
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[Copyrighted Material Omitted]
Page 342
COUNSEL
Zach
Cowan, for Appellant.
Cox,
Castle & Nicholson LLP, Andrew B. Sabey, and Ashley
Weinstein-Carnes, San Francisco, for Respondent.
Caolantuono,
Highsmith & Whatley, PC, Holly O. Whatley, Pasadena, for
Defendant.
OPINION
TUCHER,
J.
Page 343
[254
Cal.Rptr.3d 291] 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.
Page 344
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, 211 Cal.Rptr.3d 230, 385 P.3d 386
(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, 211 Cal.Rptr.3d 230, 385 P.3d 386.)
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, 276 Cal.Rptr.
410, 801 P.2d 1161.) 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, 212 Cal.Rptr. 273 (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, 236
Cal.Rptr.3d 136.)
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 [254
Cal.Rptr.3d 292] 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
Page 345
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
...