By William W. Abbott
Orange Citizens for Parks and Recreation v. The Superior Court of Orange County (July 10, 2013, G047013) ___ Cal.App.4th ___.
While not exactly a Dan Brown novel, the most recent planning law case illustrates the resulting agony which follows imprecise record keeping as to the status of previously adopted planning and regulatory documents, and how they fit in with updated general plans and other land use requirements. Without retracing all the subtle nuanced facts, this case starts with the adoption of the 1973 Orange Park Acres Specific Plan. When the City Council adopted the plan, it included amendments as recommended by the Planning Commission, nearly 40 years later, it was not clear as to what exactly those amendments were, a matter of some consequence in a later land use dispute. Over time, the City dropped the word “specific” from the plan document. The Orange Park plan was amended in later years, and was incorporated in the local general plan in 1989 and again in 2010 in the updated general plan. The descriptions of the planning document, and well as reference to the applicable land use standards varied overtime. As planners, developers, commissioners and elected officials come and go, an inconsistent understanding of the document over time is hardly surprising.
All of this is by way of background to a developer’s proposal in 2007 to develop a portion of the property covered by the plan. Milan’s application included, among other requests, a general plan amendment, specific plan amendment, development agreement and subdivision map approvals. City review of the planning documents reflected an interpretation that the site was designated open space and low density (1 acre). As the project went forward, the City Council approved the general plan amendment but also found that the project was consistent with the existing land use regulations as the City Council now understood to be the history. Following project approval, the citizens submitted a referendum governing the general plan amendment. The developer filed suit challenging the referendum, including a claim based upon alleged improprieties in the signature gathering process. The citizens also filed a cross petition seeking to set aside the other projects arguing that the effect of the referendum was to suspend the general plan amendment, and as it was a necessary condition precedent to the finding of consistency for the related project approvals, the project could not proceed. The parties agreed to sever causes of action and bifurcate claims so that critical elements of the litigation could proceed. The trial court ruled for the developer, directing the city to set aside the referendum measure from the ballot. The citizens filed a writ (to stay the lower court judgment which was granted) followed by appeal, all of which were consolidated. The referendum went to a vote and was defeated, meaning that the general plan amendment was denied. In most circumstances, that negative vote would spell the end of the project.
The appellate court decision first plows through the long and confusing history of the Orange Park Acres Specific Plan, noting the inconsistent and somewhat ambiguous treatment of the plan as it was referred to in various city documents in the succeeding three plus decades. This chronology is important as the court next defined and applied the "arbitrary and capricious" standard, a deferential basis of judicial review, to the determination of consistency, and quoted Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, decision for the proposition that it was not the roll of courts to "micromanage these development decisions". Based upon a review of all of the planning history, the court eventually concluded that a reasonable person could "disagree as to the actual composition of the City’s general plan and its consistency to the Project", noting that there was substantial evidence to support the City Council’s findings on this topic. Applying a deferential standard meant that the appellate court could not rule, as a matter of law, that the City’s interpretation of its own plan was completely misdirected. As the City Council found that the project was consistent with the general plan without the voter rejected general plan amendment, the project could go forward.
Commentary: This case is factually rich, specific to this particular specific plan, and from that perspective, is not likely to be replicated elsewhere. That said, there are important concepts illustrated this case. The case is a clarion call to cities and counties to be clear about what happens when new planning documents are adopted. What existing plans are retained and have continued vitality under the new plan? Which are rejected? The test is not necessarily what staff or the legislative body understands the facts to be immediately following adoption, but rather what happens a decade later when new staff and elected officials are interpreting a 10 year old or older planning document. This decision illustrates the great expense and uncertainty that poor recording keeping can create.
William W. Abbott is a partner 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, nor 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.