In a case of first impression published on October 25, 2019, Denham, LLC v. City of Richmond, Cal.App.5th __ (2019) (Case No. A154759), the First District Court of Appeal agreed with a trial court that a ballot initiative to preclude development on 430 acres in Richmond’s El Sobrante Valley caused the Richmond General Plan to become impermissibly inconsistent. But the Court reversed as to the appropriate remedy, and it ordered the trial court to issue a writ of mandate directing the City to cure the inconsistency.

Under basic principles of California land use law, each city and county must adopt a comprehensive, long-term general plan for its own physical development. In turn, local decisions affecting land use and development must be consistent with the general plan and its various elements. The general plan must be internally consistent in that the general plan and its elements must comprise an integrated, internally consistent and compatible statement of policies for the adopting agency. Moreover, amendments to the general plan must be internally consistent and cannot cause the general plan to become internally inconsistent.

The “Richmond Hills Initiative” implicated these provisions by amending the open space element of the City’s general plan to prohibit all residential development in the initiative area unless a court finds the prohibition unconstitutional, in which case a single home would be allowed on each parcel of at least 20 acres. While the initiative made minor amendments to the general plan land use element and more extensive amendments to its housing element, those amendments did not change the definition of “Hillside Residential,” which the general plan still defines as including single-family housing and multifamily housing, or the maps applying that classification to most of the initiative area.

After the initiative petition was signed by more than ten percent of the City’s registered voters and filed with the City, the City Council voted to adopt the initiative without alteration, as allowed under Elections Code section 9215. Several landowners in the initiative area then filed a petition for writ of mandate and complaint for damages challenging the initiative on various grounds. Sierra Club, one of the initiative’s drafters, intervened to defend the initiative.

Sierra Club made various arguments to contend there was no general plan inconsistency, including that the initiative creates a “transferable development credit” program that remedies the inconsistency. The Court reasoned that the availability of transferable development credits may mitigate a property owner’s financial losses but it does not cure the inconsistency between the Hillside Residential designation and the initiative’s ban on residential development. In fact, the land use element of the general plan authorizes residential development in the initiative area, and the initiative forbids it, contrary to the internal consistency requirement of the Planning and Zoning Laws.

Sierra Club argued that residential development is allowed under the initiative, pointing to the savings provision that applies if a court determines that the absence of residential uses effects an unconstitutional taking. But the Court refused to interpret a provision authorizing a single home on 20 acres only after the property owner has gone to court and shown a constitutional violation as being consistent with a Hillside Residential designation, where considerably more housing is allowed.

Sierra Club contended the consistency requirement applies only to general plan policies, not to general plan maps. The Court easily rejected that argument and concluded that the open space element as amended by the initiative is inconsistent with the land use element’s policy and map regarding Hillside Residential property.

Sierra Club argued that a general plan may properly contain competing policies and urged the Court to apply the rule that courts should reconcile different parts of a general plan if reasonably possible. The Court agreed that the initiative is consistent with various general plan policies but noted that such consistency does not change the fact that the initiative is facially inconsistent with the Residential Hillside designation.

Sierra Club also argued that that two typical boilerplate clauses in the initiative avoid any general plan inconsistency. One of those clauses would bar application of any other general plan provision to the extent it conflicts with the initiative. The Court pointed out that the law is clear that no element of the general plan may take precedence over the provisions of other elements. The other clause would prevent inconsistency by preventing the application of any provision to the extent a court determines that the provision, if applied, would deprive a person of their constitutional rights. The Court pointed out that the clause would also impermissibly subordinate one part of the general plan to another, in violation of general plan law requiring internal consistency.

The Court thus agreed with the trial court that the initiative creates an impermissible conflict within the City’s general plan by amending the open space element to prohibit residential development that the land use element continues to allow. And the Court noted that the initiative does so on its face because the maps in the land use element place the initiative area in the Hillside Residential classification, which still includes single-family housing and multifamily housing, while the initiative amends a different element of the general plan—the open-space element—to prohibit residences in the initiative area, except to the extent a court finds a taking. The initiative fails to amend either the text or the maps in the general plan’s land use element to show a different designation for the property, or to describe the Hillside Residential designation in a manner consistent with the initiative.

In perhaps the most important part of the case, however, the Court then dealt with the trial court’s ruling that because of the inconsistency, the initiative may not be given effect, and the court’s order to the City to vacate its adoption of the initiative. Sierra Club argued that the court should instead have directed the City to correct the inconsistency under Government Code section 65754, which mandates that if a court finds a general plan does not substantially comply with the Planning and Zoning Law’s general plan requirements, the city must bring its plan into compliance.

Unlike the seminal Lesher Communications, Inc. v. City of Walnut Creek case, which held that “a zoning ordinance that conflicts with a general plan is invalid at the time it is passed,” the Richmond Hills initiative amends the general plan, not a zoning ordinance. The Court correctly determined that Lesher does not stand for the principle that an action that renders a general plan internally inconsistent is void ab initio. “Lesher’s principle of preemption simply does not apply where the inconsistencies are found within the same general plan.”

Although it relies on a statute that prescribes the remedy, Denham is the first case to hold that a court may direct a city council to correct general plan inconsistencies when the inconsistencies are created by an initiative amending a general plan. Moreover, the Court held that the City’s inability to amend a general plan without a vote of the people is not a bar to applying Government Code section 65754, as long as other options remain viable such as amending the land use element in a manner consistent with the initiative or submitting a measure to the voters rescinding or amending the initiative to cure its inconsistency.