Posted by: Patricia Salkin | November 5, 2019

CA Appeals Court Finds Initiative Caused City’s General Plan to Become Impermissibly Inconsistent

This post was authored by Matthew Loeser, Esq.

Following the City Council of the City of Richmond’s adoption of an initiative amending its general plan to prohibit residential development on a stretch of hillside land, property owners affected by the initiative brought this action challenging it. The trial court held the initiative rendered the City’s general plan was internally inconsistent, and therefore directed the City to vacate its adoption of the initiative.

The court found that this initiative created a facial inconsistency in the general plan. Specifically, the maps in the land use element placed the property at issue in the Hillside Residential classification, which was defined as including single-family housing on subdivided parcels and multifamily housing “on developable portions of hillside parcels below the 400-foot elevation,” with density of up to five dwelling units per acre. Here, the initiative by its terms amended the open-space element of the general plan to prohibit residences in the initiative area, except to the extent a court found a taking, in which case a single home would be allowed on each parcel of at least 20 acres. Notwithstanding this, the initiative did not amend either the text or the maps in the general plan’s land use element to indicate a different designation for the property, or describe the Hillside Residential designation in a manner consistent with the initiative. Accordingly, the different elements of the general plan described incompatible uses for the same property.

The trial court held that due to the aforementioned inconsistency, the initiative could not be given effect, and ordered the City to vacate its adoption of the initiative. The court reversed this determination, finding that the public entity would be able to amend its general plan in ways that did not conflict with the initiative amendment, or the public entity could propose an amendment to the electorate, if necessary, to maintain an adequate general plan. On remand, the trial court was ordered to issue a new writ of mandate directing the City to cure this inconsistency in its general plan.

Denham, LLC v. City of Richmond, 2019 WL 5493479 (CA App. 10/25/2019)


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