American humorist Will Rogers once quipped, “The minute you read something that you can’t understand, you can almost be sure it was drawn up by a lawyer.” There are, of course, many other similarly amusing criticisms of legal writing. According to former Yale Law School professor Fred Rodell, for example, “There are two things wrong with almost all legal writing. One is its style. The other is its content.”
To the extent such assessments ever ring true, they are especially unfortunate when given life in the form of a poorly-written published court opinion addressing important legal issues. The Fourth District Court of Appeal’s October 31, 2017 opinion in The Kennedy Commission v. City of Huntington Beach, __ Cal.App.5th __ (2017) serves as a prime recent example. The saving grace is that the Court reached the right legal conclusion.
The case addressed a challenge to the City’s decision, in response to complaints by residents that the area was developing too rapidly, to amend the Beach Edinger Corridors Specific Plan to reduce the number of allowable units in the plan area from 4,500 to 2,100. A housing advocacy group filed a petition for writ of mandate alleging that the reduction violated state housing law because the City would be unable to meet its share of the Regional Housing Need Allocation (“RHNA”). The group also argued that the amendment should be invalidated because the amended specific plan no longer complied with the general plan’s housing element.
In its opposition, the City argued that it was already working to amend its housing element to meet its RHNA obligation. The City also argued that it was not necessary to void the specific plan because amending the housing element would achieve consistency.
The trial court found that the specific plan violated state housing law because upon amendment it ceased to be consistent with the general plan. In reliance on Government Code section 65454, the court found that a specific plan cannot be amended unless it is consistent with the underlying general plan. Here, the City amended the specific plan without first amending the housing element of the general plan to identify other areas for affordable housing. As a result, under Lesher Communications, Inc. v. City of Walnut Creek, the amended specific plan was void ab initio, or upon its passage, and could not be enforced.
On appeal, the City dropped the main argument it raised in the trial court and argued instead, for the first time, that Government Code sections 65454 and 65860, which require specific plans and zoning ordinances to be consistent with the applicable general plan, do not apply to Huntington Beach because it is a charter city rather than a general law city. Under Government Code section 65700 dealing with land use planning, and section 65803 dealing with zoning ordinances, charter cities with less than 2,000,000 residents are exempt from these consistency requirements unless a charter city provides otherwise in its charter or zoning ordinance.
The Court of Appeal allowed the City to raise this new defense and took judicial notice of the Huntington Beach charter and zoning ordinance. Accordingly, the Court first examined the City charter and held that it was “clear” the City did not intend to adopt the consistency requirement. The Court then examined several provisions of the zoning ordinance that could potentially require the specific plan to be consistent with the general plan and concluded that those provisions did not make it sufficiently clear that the City intended to adopt the consistency requirement. Based on its interpretation of several leading cases, the Court held that “[the] City must have made it clear that the exemption in section 65700 was being rejected by [the] City and that it intended that no specific plan could be adopted that was not consistent with the general plan.”
Having determined, essentially, that there must be an express statement adopting the consistency requirement, in the language of the Government Code, the Court was unwilling to imply from any provision of the zoning ordinance that the City intended to require the specific plan to be consistent with the general plan.
Although the quality of The Kennedy Commission as a piece of written legal work shows the ongoing value of people like famed writing maven Bryan Garner, the case itself is important and noteworthy. Among other things, an inconsistent specific plan will only be void if a charter city has expressly adopted the Government Code section 65454 requirement that “[n]o specific plan may be adopted or amended” unless it is consistent with the general plan. And to that end, the case shows the value of the charter city exemption to the consistency requirement and the importance of raising that defense immediately rather than running the risk of waiving the defense by raising it for the first time on appeal.