Orange Citizens for Parks and Recreation v. Superior Court (2016) 2 Cal.5th 141, 211 Cal.Rptr.3d 230

Why It Matters: The California Supreme Court unanimously set aside the City of Orange City Council’s finding of a project’s consistency with the City General Plan based on a 1973 City resolution that was not incorporated into the publicly available version of the General Plan. The City’s published General Plan designated the project site as Open Space, and the City adopted a General Plan Amendment to change the project site from Open Space to Residential. When presented with a referendum on the General Plan Amendment, the City determined that a 1973 resolution adopted by the Planning Commission and City Council had changed the designation to Other Open Space and Low Density, but these changes were never made to the published versions of the General Plan. Holding that “public access has little value if the general plan’s policies are not readily discernible,” the Supreme Court held that the City was bound by the published version of the General Plan.

Facts: In 2007, applications to develop a 39-unit low density project on a former golf course were submitted to the City. In 2009, during the project’s entitlement process, a 1973 Planning Commission resolution was discovered recommending that the land use designation for the project site be changed to “Other Open Space and Low Density (1 acre),” and that this recommendation was subsequently adopted by the City Council, thus permitting low-density residential development on the site. In 1977, the City Council amended the General Plan to permit low-density residential development in Orange Park Acres where the project site is located and directed that the Orange Park Acres Plan be revised accordingly. Despite this direction, the General Plan land use map was never changed to reflect the low density designation. As a result, in 1989, the City adopted a General Plan that designated the project site as “Open Space/Golf” and again in 2010 when the City updated its General Plan, the project site was designated “Open Space.” The official land use map in the General Plan showed the site as “Open Space.”

Because of what was reflected in the General Plan, the applicant requested an amendment to change the General Plan land use designation from Open Space to Estate Residential. After the City Council approved the project, a citizens group initiated a referendum on the General Plan Amendment and collected sufficient signatures to place the measure on the ballot. The General Plan Amendment was subsequently rejected by the voters.

While the referendum was pending, the City concluded that the failure to incorporate the 1973 Planning Commission and City Council actions into the General Plan was a “clerical error” and that the true designation for the site was “Other Open Space and Low-Density Residential (1 acre),” and thus the General Plan Amendment was not required to permit the Project to go forward and the pending referendum would not negate the entitlements. The applicant then filed a lawsuit to stop the referendum, to which the citizens group cross-complained.

In July 2012, the trial court entered judgment in favor of the applicant ordering the referendum to be removed from the ballot and that the project could move forward in accordance with the “Other Open Space and Low-Density Residential (1 acre)” land use designation. The citizens group requested relief from the Court of Appeal, and later in July the Court of Appeal granted a stay of the trail court’s decision and allowed the referendum to remain on the ballot. In November 2012, the voters rejected the General Plan Amendment. Nevertheless, in July 2013, the Court of Appeal upheld the trial court decision and the project’s entitlements. Although the Court of Appeal found considerable ambiguity in the City’s planning documents, it held that “this uncertainty counseled in favor of deferring to the City Council’s judgment.” The citizens group appealed to the California Supreme Court.

The Decision: Before the Supreme Court, the City argued that the City’s interpretation as to what comprised the applicable General Plan was entitled to deference. The Supreme Court, however, held that “deference has its limits.” Based on the published version of the General Plan, no reasonable person could interpret the Plan as permitting residential development on the site. The Supreme Court also pointed out that the City’s consistency finding only considered the General Plan as it was proposed to be amended, which amendment had been rejected by the voters. The City itself had never really considered the issue of consistency with the pre-existing 2010 General Plan; but even if it had, the official map in the 2010 General Plan was the controlling document, notwithstanding the City’s assertion that the map was not accurate due to a clerical error. The public is entitled to be informed as to the applicable law with regard to land use decisions.

Practice Pointers:

  • This case reflects the strong policy that the public input and transparency are key components of the General Plan process. Care should be taken to ensure that that the public notice and hearing process are fully complied with and transparent. We should anticipate that future court decisions will reflect the policy statements in this opinion that underscore the need for transparency in land use decisionmaking.
  • In this case, had the City Council specifically considered the scrivener’s error and published corrected documents before the public hearings, this result could have been avoided. Correcting an error does not require a public hearing or additional CEQA review.