General Plan Inconsistencies Created By Revisions To Housing Element Can Be Remedied Through Timely Implementation Plan To Conform Inconsistent Elements

By Katherine J. Hart

In addressing their fair share regional housing needs, cities are required to include in their housing elements, site inventory for parcels able to be developed with multifamily housing for seniors and low income residents. However, when surrounding parcels have been built out, existing homeowners may object to the inclusion of such housing in their neighborhood.

Such is the case in Friends of Aviara v. City of Carlsbad (November 1, 2012, D060167) __ Cal.App.4th ___, when a local neighborhood group challenged the City of Carlsbad’s (City) revisions to its housing element. Specifically, the revisions to the City’s housing element identified various parcels in the Aviara area for multifamily and low income housing, when those same parcels were designated by the City’s land use element as single-family housing. Friends of Aviara challenged the revisions to the housing element on the ground that the City’s revisions created an impermissible inconsistency between the City’s housing and land use elements. Citing to Government Code section 65300.5 and the Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90 case, Friends argued that a general plan (and all its elements) must be internally consistent. 

Both the trial court and the Court of Appeal, Fourth Appellate District disagreed. The appellate court held that Government Code section 65583(c) expressly contemplates that cities may need to alter existing land use regulations if they are to meet their regional housing obligations, and that cities may revise their housing elements to include proposed changes to other general plan elements such as the land use element so long as they also include a timeline for the adoption of those proposed changes. In other words, the appellate court found that “section 65583(c)(7) is a clear exception to the requirement of section 65300.5 that general plans be facially consistent” and that, “in the case of housing, the Legislature has permitted some inconsistency so long as the means of resolving any inconsistency is also set out.”

Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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