The Gili for nhi Surveyor - CLSA

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Concerned Citizens of Calaveras
County v. Board of Supervisors
The cases discussed above focused on
the adequacy of general plan elements
when measured against the statutory
mandate. In Concerned Citizens of Calaveras
County v. Board of Supervisors
(1985) 166 CA3d 90, 212 CR 273, the
court emphasized another requirement
— the need for the elements of
the general plan to comprise an "integrated,
internally consistent and compatible
statement of policies." Govt C
§65300.5; Sierra Club v. Board of Supervisors
(1981) 126 CA3d 698,179 CR 261,
reported at 5 CEB RPLR 42 (Mar. 1982).
In Concerned Citizens, the court reviewed
the land use and circulation
elements of the county general plan. It
found that the circulation element was
internally contradictory. In one place it
indicated that current county roads
would be able to accommodate projected
traffic until the year 2000 without
significant problems. In other
places it commented on the inadequacy
of the roads to meet future needs
of the county.
Another problem with the circulation
element was the lack of correlation
between it and the land use element (a
problem also present in Camp and
Twain Harte). The court noted that the
land use element called for substantial
growth while the circulation element
set forth problems associated with projected
traffic. The court suggested that,
to be valid, the general plan must provide
a means by which transportation
needs for this increased population
would be met; simply proposing that
the county should "ask various higher
levels of government for money for
state highways" is not enough. 166
CA3d at 102, 212 CR at 281. This is a
significant statement. It implies that,
not only must the general plan describe
growth problems faced by the
community, it also must come up with
meaningful solutions or adjust the
land use plan accordingly.
CHALLENGING
A GENERAL PLAN
State law specifically provides for
court challenges to the legal adequacy
of a general plan or one of its mandatory
elements. Govt C §§65750-65763.
The action must be brought in traditional
mandamus (Govt C §65751) because
the adoption of the general plan
is a legislative act (Govt C §65301.5). If
the general plan or element is adjudged
legally deficient, the city must
bring it into compliance within 120
days. Govt C §65754(a). The court may
grant two extensions of time, not to exceed
a total of 240 days, for the city to
comply. Govt C §65759(2). Of course,
the city must thereafter bring its zoning
ordinance into compliance with
the amended general plan within a further
120 days. Govt C §65754(b). (Note
that a zoning ordinance may not be
adopted in the absence of an adequate
general plan. See, e.g., Resource Defense
Fund v. County of Santa Cruz (1982) 133
CA3d 800, 806, 184 CR 371, 374, reported
at 5 CEB RPLR 134 (Oct. 1982).
Permissive elements generally address
either secondary or narrow subjects
and do tend not to generate controversy.
However, the requirement of
internal consistency among general
plan elements could provide the basis
for a challenge to permissive elements
of a general plan, or to the general plan
in its entirety, if one or more permissive
elements are inconsistent with provisions
of the mandatory elements. Such
challenges are real, and would be most
likely to occur in conjunction with attempts
to annul a growth control ordinance
or development approval.
The law requires that an action challenging
a general plan or amendment
must be brought within 120 days of its
adoption. Govt C §65009(c). But this
does not mean that, once adopted, the
plan will be invulnerable until the next
amendment. As one can glean from the
cases discussed above, any action
taken by a local agency which "implicates"
the general plan renders the
general plan, as well as the approval,
subject to attack. So, for example, in
Camp v. Board of Supervisors (1981) 123
CA3d 334,176 CR 620, the approval of
a tentative subdivision map resulted in
adjudication of general plan deficiencies.
The court of appeal recently reaffirmed
this rule in a case where the inadequacies
had existed for years. See
Kings County Farm Bureau v. City of
Hartford (1990) 221 CA3d 692, 741, 270
CR 650, 675, reported at 13 CEB RPLR
203 (Oct. 1990). It is an open question
whether an amendment to the general
plan could trigger an attack on general
plan inadequacies that are wholly unrelated
to the amendment.
For a list of action that could implicate
general plan deficiencies because
they must be consistent with the general
plan, see Appendix, "Consistency
Provisions In State Law And Legal
Precedents" at p. 155.
If the general plan is amended while
litigation is pending, the adequacy
challenge can become moot, but the
permit might still be vulnerable. See
Neighborhood Action Group v. County of
Calaveras (1984) 156 CA3d 1176, 1182
n4, 203 CR 401, 405 n4. For example,
when a housing element lacks an up-todate
assessment and inventory of moderate-
and low-income housing, a housing
advocacy group might sue to
invalidate the approval of a condominium
conversion. Amendment of the
housing element while the litigation is
pending, to cure the defect, may render
moot plaintiff's general plan challenge,
but does not necessarily resolve the
question of whether the conversion approval
was legally granted. Because the
conversion of an apartment building to
condominiums must be consistent with
a city's housing policies, as embodied
in the housing element, a permit issued
when the housing policies were inadequate
might be declared void from its
inception. Cf. Lesher Communications,
Inc. v. City of Walnut Creek (1990) 52 C3d
531, 277 CR 1. Or it might be tested for
validity under the amended plan. See
Sierra Club v. Board of Supervisors (1981)
126 CA3d 698,179 CR 261, reported at
5 CEB RPLR 42 (Mar. 1982). In either
event, most lawsuits survive the adoption
of general plan amendments.
Therefore, the permit holder should
consider the alternative of reprocessing
the permit under the amended plan.
Effect of OPR Extensions
An OPR extension immunized a local
agency from lawsuits challenging general
plan adequacy. However, if suit is
filed before the extension has been secured,
any approvals under attack in
the lawsuit can remain vulnerable. See
Neighborhood Action Group v. County of
Calaveras (1984) 156 CA3d 1176, 1190,
203 CR 401, 411; Resource Defense Fund
v. County of Santa Cruz (1982) 133 CA3d
800, 810, 184 CR 371, 376, reported at 5
CEB RPLR 134 (Oct. 1982).
For example, a lawsuit challenging a
subdivision map approval may still go
forward even if the general plan challenge
on which it is based is preempted
by an OPR extension. Assuming the
terms of the extension allow the
processing of applications pending the
extension period, the developer involved
in that lawsuit is then presented
with the choice of reprocessing the
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32 The California Surveyor Winter/Spring 1992