Lesher Communications, Inc. v. City of Walnut Creek

• Decision Date: 31 December 1990
• Docket Number: No. S012604,S012604
• Citation: 277 Cal.Rptr. 1,52 Cal.3d 531,802 P.2d 317
• Court: California Supreme Court
• Parties: , 802 P.2d 317 LESHER COMMUNICATIONS, INC., et al., Plaintiffs and Respondents, v. CITY OF WALNUT CREEK, Defendant and Appellant.

Page 1

277 Cal.Rptr. 1

52 Cal.3d 531, 802 P.2d 317

LESHER COMMUNICATIONS, INC., et al., Plaintiffs and Respondents, v. CITY OF WALNUT CREEK, Defendant and Appellant.

No. S012604.

Supreme Court of California In Bank.

Dec. 31, 1990.

David Benjamin and Thomas Haas, City Attys., John Truxaw, Deputy City Atty., Shute, Mihaly & Weinberger, Mark Barbara S. Blinderman, Stephen C. Volker, John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Theodora Berger, Asst. Atty. Gen., Susan L. Goodkin and Susan L. Durbin, Deputy Attys. Gen., Freilich, Stone, Leitner & Carlisle and Katherine E. Stone as Amici Curiae, on behalf of defendant and appellant.

I. Weinberger, Marc B. Mihaly, Wendy S. Strimling and Rachel B. Cooper, San Francisco, for defendant and appellant.

McCutchen, Doyle, Brown & Enersen, Sanford M. Skaggs, Daniel J. Curtin, Jr., and Maria P. Rivera, Walnut Creek, for plaintiffs and respondents.

Gibson, Dunn & Crutcher, Newport Beach, John A. Arguelles, Los Angeles, Richard G. Duncan, Jr., Jeffrey T. Thomas, Edward L. Xanders, Newport Beach, Ronald A. Zumbrun, Edward J. Connor, Jr., John H. Findley, John M. Groen, Sacramento, Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer and Winfield D. Wilson, Los Angeles, as Amici Curiae, on behalf of plaintiffs and respondents.

EAGLESON, Justice.

We are asked to decide whether an initiative measure limiting municipal growth which conflicts with a city's general plan amends that plan, and, if it is not an amendment, whether it is invalid. As we explain below, we conclude that the initiative measure in dispute is not a general plan amendment, and state law which requires that zoning ordinances conform to the general plan invalidates newly enacted zoning ordinances that do not conform to an existing general plan.

I

The Planning and Zoning Law of the State of California (Gov.Code, § 65000 et seq.) ¹ mandates the adoption of a general plan by every city and every county in this state ( § 65300), ² provides that its adoption is a legislative act, and authorizes review by petition for writ of mandate pursuant to section 1085 of the Code of Civil Procedure. ( § 65301.5.)

A general plan must set out a statement of the city's development policies and objectives, and include specific elements among which are land use and circulation elements. ( § 65302, subds. (a) & (b).) ³ Once the city has adopted a general plan, all zoning ordinances must be consistent with that plan, and to be consistent must be "compatible with the objectives, policies, general land uses, and programs specified in such a plan." ( § 65860, subd. (a)(ii).)

As of November 5, 1985, the date on which Measure H, the initiative ordinance in issue here, was adopted, the general plan of the City of Walnut Creek (Walnut Creek or the city) was growth oriented. It had as an objective, accommodation of "that portion of the projected population growth of Contra Costa County and the Bay Region which reasonably can be accommodated in Walnut Creek." It also provided for land use that would expand residential areas with densities both compatible with existing Measure H, designated in its title as a "Traffic Control Initiative," creates a building moratorium triggered by traffic congestion on the same roadways, providing inter alia:

                development and responsive to the need for additional housing;  expand the city's central commercial district;  enhance the city's position as a subregional administrative and professional office center, and as a subregional retail shopping center;  and provide for expansion of existing office, research and limited development employment center.  The general plan anticipated, indeed acknowledged in its transportation plan, that:  " 'Commute-hour congestion experienced along Ygnacio [Valley Road], Treat [Boulevard], [Freeway] I-680, and other roadways will continue to increase as new development occurs.   Although some minor improvements can be made to these roadways, drivers will have to adjust to an increased level of congestion.'  (Italics added.)"
                

"No buildings or structures shall be built in the City of Walnut Creek unless (1) the AM and PM Peak Hour Volume to Capacity Ratio of all intersections on Ygnacio Valley Road and all intersections within the Core Area along Main Street, Broadway, California Blvd., Mt. Diablo Blvd., Civic Drive and Parkside Drive is .85 or less, and (2) the traffic generated by the proposed building or structure when such traffic is added to the existing and expected traffic volumes, will not increase the AM or PM Peak Hour Volume to Capacity Ratio at any of those intersections above .85."

Plaintiffs challenged the validity of Measure H by petition for writ of mandate and complaint for declaratory relief, asserting in their first cause of action (1) that Measure H was a land use ordinance which operated as a zoning ordinance and was inconsistent with the city's general plan, and (2) that the general plan itself was invalid. ⁴ They alleged, and Walnut Creek admitted in its answer, that peak hour traffic volume at some of the designated intersections already exceeded the .85-volume-to-capacity threshold at which the moratorium took effect, and for that reason the city had already imposed a moratorium on the construction of buildings and structures other than those explicitly exempted by Measure H and those already under construction on its effective date.

Pursuant to stipulation, this count and the sixth count, seeking declaratory relief on that basis, were severed and tried on evidence submitted through declarations and matters of which the court could take judicial notice. ⁵ After trial the court directed issuance of a peremptory writ of mandate commanding Walnut Creek to void Measure H and to cease enforcing it, ruling that Measure H was invalid because it conflicted with the general plan goals and policy of growth and expansion of commercial and residential development.

The trial court concluded that Measure H was not an amendment of the general plan, observing that it was not described as such in the ballot measure, the analysis of the city attorney, or any of the arguments in favor of or in opposition to the measure. Further support for that conclusion was found in the detailed scope and the self-executing nature of Measure H, features not common to general plan provisions which are the basis for future development to be implemented by additional detailed measures. The court found it unnecessary to determine if Measure H was a zoning ordinance, because the effect of inconsistency with the general plan was the same regardless of whether Measure H was a zoning ordinance or a measure other than a general plan amendment affecting land use.

The peremptory writ was granted on February 23, 1987. Walnut Creek appealed, arguing that Measure H was consistent with the city's general plan because it was compatible with the progrowth policies expressed in the plan, and promoted other policies expressed in the general plan. The city argued in the alternative that even if Measure H was inconsistent with the general plan, it was valid as an amendment of the general plan.

The Court of Appeal rejected Walnut Creek's argument that Measure H was consistent with the general plan, ⁶ but held that the initiative must be construed as an amendment to the general plan.

While the appeal was pending, Walnut Creek amended the general plan in an effort to incorporate Measure H and to eliminate the inconsistencies identified by the trial court. The Court of Appeal concluded that possible mootness did not preclude consideration of the issues raised by the city. Because a conclusion that Measure H itself amended the general plan might trigger the statutory prohibition of legislative amendment of an initiative measure (see Elec.Code, § 4013) and cast doubt on the validity of the subsequent legislative amendment of the plan, this court agrees.

II GENERAL PLAN AMENDMENT

The Planning and Zoning Law provides for adoption or amendment( § 65356.1) of a general plan, following notice and at least one hearing, by resolution of the local planning commission ( § 65352) and endorsement reflecting its approval by resolution of the legislative body.( §§ 65353, 65357.) The legislative body's approval must also follow at least one noticed public hearing. ( § 65355.) Nevertheless, because adoption of a general plan is a legislative act, the people's reserved power of referendum (art. II, § 11) has been held to be applicable (Yost v. Thomas (1984) 36 Cal.3d 561, 570-571, 205 Cal.Rptr. 801, 685 P.2d 1152) and both the initiative and referendum powers have been held applicable to zoning ordinances (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 516-517, 169 Cal.Rptr. 904, 620 P.2d 565; Friedman v. City of Fairfax (1978) 81 Cal.App.3d 667, 672, fn. 5, 146 Cal.Rptr. 687) notwithstanding similar procedural requirements which apply to the legislative body.

This court has never considered whether a general plan may be adopted or amended by initiative. Several amici curiae argue that, because compliance with the numerous substantive provisions of the Planning and Zoning Law can be achieved only by a legislative body, that law preempts the local initiative power. ⁷ We The Court of Appeal recognized that the courts must resolve all doubts in favor of the people's exercise of the initiative power and uphold the validity of an initiative wherever it is possible to do so. (See Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473.) It found no significance in the fact that Measure H was not described in its title or in other ballot measures as an amendment to the general plan, but agreed with the trial court that the specificity and self-executing nature of Measure H resembled a zoning ordinance rather than a general plan provision. The court then considered whether those features would...