General Plans: City Must Process Application During General Plan Update
A city may not use an interim ordinance to suspend the processing of development applications during a general plan update, the Fourth District Court of Appeals has ruled.
The appellate panel threw out a City of San Juan Capistrano interim ordinance that stopped the processing of applications for certain large parcels. The ordinance, first adopted in June 1998, stalled Concorde Development's application for the 356-unit Whispering Hills subdivision and golf course on the eastern edge of the south coast city.
The city can use an interim ordinance to deny subdivisions, use permits, variances, building permits and other entitlements if the public health, safety and welfare is at risk, the unanimous appellate panel said. However, Government Code § 65858, which authorizes interim ordinances, does not permit the city to stop the processing of applications.
"A tentative subdivision map is by definition tentative," Presiding Judge David Sills wrote for the unanimous court. "Formal submission of the application to the city's planning department merely starts the wheels rolling and allows the city, the developer and the public to begin the environmental review process. It does not guarantee the landowner any right to an approval of the proposed project. As always, the city retains the power to deny it. (Govt. Code § 66474.)"
Concorde in 1997 submitted its application for Whispering Hills, a development of $500,000 to $850,000 houses on 156 acres, with a golf course on the remaining 200 acres. Although the project fit with San Juan Capistrano's general plan, residents quickly complained about grading that the construction would necessitate, as well as traffic and density once houses were built. The City Council responded on April 21, 1998 by telling the planning department to begin studying possible amendments to the general plan's land use element. Two months later, the City Council adopted an interim, 45-day ordinance to suspend processing of certain development applications pending a comprehensive review and update of the general plan. The measure allowed special studies and environmental impact reports to go forward on effected projects, but it barred public hearings.
The interim ordinance exempted developments with vested rights, subdivisions of 50 or fewer lots, senior citizen developments, commercial projects of less than 10 net acres, institutional projects, and agricultural operations permitted by underlying zoning. "While the city denies it," Judge Sills wrote, "Concorde argues the effect of the exemptions was to exclude every parcel within the city except a small handful that have no present development plans — and, of course, the Whispering Hills project."
In July 1998, the City Council extended the ordinance for 10 months and 45 days. (In May of this year the city extended the ordinance for another year.) Concorde filed a complaint for declaratory relief and a petition for writ of mandate and prohibition. But Orange County Superior Court Judge Barbara Tam Nomoto Schumann denied the petition. The Building Industry Legal Defense Foundation then filed a petition for writ of mandate in the Fourth District Court of Appeal, Division Three. The appellate court set aside Schumann's ruling and issued a preemptory writ of mandate declaring the city's ordinance invalid.
At the appellate court level, the city argued that processing specific proposals during the general plan update was pointless. The city also contended Government Code § 65858 authorizes the city to stop formal processing of development applications.
Not so, said the appellate court. The statute providing for "temporary interim zoning ordinances" has been around for decades with only minor amendments. "Although the Legislature could have tied adoption of an interim ordinance to the submission or processing of a development application, it chose to set the bar higher, restricting its application to situations where an approval of an entitlement of use was imminent," Sills wrote.
The opinion continued: "Interim ordinances, often referred to as ‘stop-gap' or ‘incubation period' ordinances, prohibit a property owner from using his or her property for a specified use for a limited period of time. (CEEED v. California Coastal Zone Conservation Commission (1974) 43 Cal.App.3d 306, 314.) They protect and promote the planning by, among other things, prohibiting the introduction of potentially nonconforming land uses that could defeat a later adopted general plan or zoning ordinance. (216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal.App4th 860, 869.)"
The Subdivision Map Act establishes the procedure for processing development applications and "a city cannot use an interim ordinance as a backdoor method to modify the rules," the court said.
Building Industry Legal Defense Foundation v. Superior Court of Orange County, No. G024456, 99 C.D.O.S. 4776, 1999 Daily Journal D.A.R. 6133, filed June 17, 1999.
For BILT: Robert I. McMurry, Nossaman, Guthner, Knox & Elliott, (949) 833-7800.
For City of San Juan Capistrano: John R. Shaw, Woodruff, Spradlin & Smart, (714) 564-2603.