The Gili for nhi Surveyor - CLSA

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Coming of Age.... CONTINUED FROM PACE 30 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 CONTINUED ON PACE 34 32 The California Surveyor Winter/Spring 1992
Sample OPR Extension Note: The following extension wa* issued to the City of Poway and is offered as an example only. It was provided counesy of the Office of Planning and Research. (The current Director of OPR is Richard P. Sybert.) October 23, 1990 [name} City Manager City of Poway Re: City of Poway General Plan Extension Dear [name]: This is to inform you that I have approved the City of Poway's request for an extension of time for the revision of its general plan. This extension of time does not apply to the housing element because of statutory constraints. The extension is granted for a oneyear period beginning on October 23, 1990, and ending on October 22,1991, or upon the adoption of the revised general plan, whichever is earlier. The extension, as provided in Government Code section 65361, releases the city from the requirement that it maintain a complete and adequate general plan. As the basis for granting this extension, I reference the finding made by the Poway City Council in Resolution No. 90-199. I have determined that the resolution and the additional explanatory and supporting data submitted with the application satisfy the requirements of Government Code section 65361 and its relevant subsections. In accordance with the powers granted me by Government Code section 65361,1 have determined that the following conditions are necessary in order to ensure full compliance with the Planning and Zoning Law during the term of the extension. 1. Discretionary land use projects shall be approved by the city only when the city makes written finding, based upon substantial evidence in the record, that: (1) the proposed project will be consistent with the existing general plan and (2) there is a reasonable probability that the project will be consistent with the proposed general plan. 2. The city shall neither initiate, accept, process, nor act on any proposals for general plan amendments during the term of this extension. 3. The city shall not enter into any development agreement or other such agreement or document (such as a vesting tentative map) which vests and legally precludes unilateral changes in land use by the city, with the following exceptions: a. a development agreement for the previously approved "Old Coach Golf Estates" project. b. disposition and development agreements or similar agreements entered into by the city redevelopment agency for the purposes of redevelopment. 4. For the purposes of this extension — "Discretionary land use project" is defined to include: a specific plan, a city-initiated annexation request, a tentative map (including parcel map), a zoning ordinance amendment (including rezoning), a planned community development plan, a conditional use permit, a variance, a development review, or a public works/capital improvement project (except as necessary to maintain existing facilities or protect the public health and safety). "City" is defined to include the city council as well as any city official, committee, or board-delegated administrative responsibilities under city ordinances and policies. If you have any questions regarding this extension, please contact Inamel at Itelephonel. Sincerely, John McCarthy Director ^QUICK RELEASE ¥ The new SECO 8' telescoping prism pole features a European-style quick release handle which allows for fast and convenient setup. The new quick release pole comes with anodized graduations and an adjustable threaded tip for all brands of prisms. 53 54 i Catalog I #5104 ••pmi'tP SECO MANUFACTURING CO., INC. 2608 Hartnell Ave., Redding, Ca. 96002 (916) 222-1440 • 800-824-4744 • FAX: 916-221-7540 California Land Surveyors are Professionals. They Deserve Professional Service. At AA&C, we view Land Surveying as a profession with unique insurance needs. Our Business Insurance Division is ready to provide you with service-oriented: • Professional Liability Insurance • Office Package/General Liability Insurance • Commercial Automobile Insurance • Equipment Floaters Professional Land Surveyors deserve professional service from a broker with experience. Call us today at either one of our convenient locations. Alicia K Igram. AAI Association Administrators & Consultants 19000 MacArthur Blvd.. Suite 500 Irvine. California 92715 (714)833-0673 • (800)854-0491 Ashton Fleetham Association Administrators & Consultants 655 Montgomery St.. Suite 1480 San Francisco, California 94111 (415)397-1119 Winter/Spring 1992 The California Surveyor 33
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