Midway Orchards v. County of Butte

• Decision Date: 21 May 1990
• Docket Number: C003276,Nos. C004316,s. C004316
• Citation: 220 Cal.App.3d 765,269 Cal.Rptr. 796
• Court: California Court of Appeals Court of Appeals
• Parties: MIDWAY ORCHARDS, Plaintiff and Appellant, v. COUNTY OF BUTTE et al., Defendants and Appellants, City of Chico, Intervenor and Respondent. COUNTY OF BUTTE, Plaintiff and Appellant, v. MIDWAY ORCHARDS et al., Defendants and Appellants. CITY OF CHICO, Real Party in Interest and Respondent.

Page 796

269 Cal.Rptr. 796

220 Cal.App.3d 765

MIDWAY ORCHARDS, Plaintiff and Appellant, v. COUNTY OF BUTTE et al., Defendants and Appellants, City of Chico, Intervenor and Respondent.

COUNTY OF BUTTE, Plaintiff and Appellant, v. MIDWAY ORCHARDS et al., Defendants and Appellants.

CITY OF CHICO, Real Party in Interest and Respondent.

Nos. C004316, C003276.

Court of Appeal, Third District, California.

May 21, 1990.

Certified for Partial Publication.

Review Denied Aug. 1, 1990.

Rutan & Tucker, Leonard A. Hampel, Philip D. Kohn, Costa Mesa, and Karen Bush for appellants Midway Orchards, et al.

Susan Roff, County Counsel, Remy and Thomas, Michael H. Remy, and James G. Moose, Sacramento, for appellants County of Butte, et al.

Robert G. Boehm, City Atty., for intervenor and real party in interest, City of Chico.

SIMS, Associate Justice.

In this opinion we decide two related appeals which have been consolidated at the request of one of the parties.

Both appeals involve unsuccessful attempts by Midway Orchards and Southfork Developers (collectively "Midway") to develop for residential purposes a 110-acre almond orchard located about two miles outside the City of Chico (City).

In an unpublished portion of the opinion, ¹ we first consider appeal No. C004316. There, we reject Midway's attack on a 1982 amendment to the Butte County General Plan that restricted Midway's orchard property to agricultural uses by placing it outside a "greenline" defining the outer limit of urban development in the City.

We next consider appeal C003276. This appeal concerns attempts in 1984 by the Butte County Board of Supervisors (Board) to allow Midway to develop its property by amending the general plan and applicable zoning ordinance and by entering into a development agreement pursuant to article 2.5 of division 1 of title 7 of the Government Code (§§ 65864-65869.5). The Board's attempts to amend the general plan and zoning ordinance were greeted by a citizens' referendum petition. In an unpublished portion of the opinion we conclude the form of the referendum petition was lawful.

Midway contends the trial court erred in ruling the development agreement was invalid. However, we shall affirm the trial court's conclusion the development agreement was not lawfully approved because it was never consistent with the general plan as required by law. In reaching this conclusion, we fashion a remedy to govern a referendum challenging a Board resolution amending a general plan, because the Legislature has failed to provide any rules or procedures governing a referendum challenging such a resolution. This remedy is therefore necessary to secure the right of referendum granted by our state Constitution.

I. Appeal No. C004316

(Butte County Superior Court No. 78957) ^*

II. Appeal No. C003276

(Butte County Superior Court No. 89095)

A. Factual and Procedural Background

Sometime in 1982, Midway applied to the Board for permission to withdraw Midway Orchards from a land conservation agreement under the Williamson Act (a necessary first step toward development of the land) in order to turn it into a 110-unit residential subdivision after all planning and zoning designations had been changed to allow such development.

On October 30, 1984, the Board performed four acts in response to Midway's application: (1) certification of an environmental impact report (EIR) prepared for the project; (2) adoption of Resolution No. 84-174, amending the County General Plan to change the land-use designation for the property from "Orchard and Field Crops" to "Agricultural-Residential"; (3) adoption of Ordinance No. 2437, rezoning the property from "A-2 (General)" to "PUD (Planned Unit Development) "; (4) approval of a tentative subdivision map. Resolution No. 84-174 specified no effective date.

In response to these acts, citizens of the County circulated a referendum petition demanding the repeal of Resolution No. 84-174 and Ordinance No. 2437 or submission of both acts to the voters.

On November 27, 1984 (28 days after the passage of Resolution No. 84-174 and Ordinance No. 2437), the Board enacted Ordinance No. 2445, which approved a proposed development agreement between the Board and Midway, found it to be consistent with the County General Plan, authorized the Chairman of the Board to execute it, and instructed the Clerk of the Board to record it following its execution.

On December 4, 1984, the Chairman of the Board and Midway executed the development agreement.

On December 10, 1984, the County Clerk certified that the referendum petition had been filed, but did not specify the date of filing. ¹⁷

On December 13, 1984, the County's Chief Administrative Officer informed the Board that due to the referendum petition the Board was legally required either to repeal Resolution No. 84-174 and Ordinance No. 2437 and rescind the approval of the tentative subdivision map or to hold an election. The Board chose the former course:

On January 15, 1985, it repealed Ordinance No. 2437 (the zoning amendment).

On February 12, 1985, it repealed Ordinance No. 2445 (the approval of the development agreement).

On June 4, 1985 it enacted Resolution No. 85-92 superseding the attempted general plan amendment.

Thereafter, the County filed this action for declaratory relief seeking a declaration that the development agreement never became operative and therefore vested no rights in Midway.

Pursuant to section 437c, subdivision (f) of the Code of Civil Procedure, Midway sought summary adjudication of two issues: (1) that the referendum petition was invalid and (2) that Resolution No. 84-174, amending the general plan, was effective upon its passage.

The trial court granted Midway's motion in part and denied it in part. On the first issue, the court held the referendum petition was invalid in form. On the second issue, the court held that a resolution amending a general plan, unlike resolutions in general, does not take effect until 30 days after its passage. In this court, the County challenges the first part of this order while Midway challenges the second part.

The County then moved for summary judgment on the issue of the Board's authority to enact Ordinance No. 2445 (approving the development agreement) less than 30 days after the adoption of the General Plan amendment. Midway also filed a motion for summary judgment on this issue.

The trial court granted summary judgment to the County (i.e., holding the Board's approval of the development agreement was invalid because ultra vires). The trial court reasoned that since the general plan amendment was not effective when the ordinance approving the development agreement was passed on November 27, the development agreement was not consistent with the general plan as required by Government Code section 65867.5. ¹⁸

Midway and the County filed timely notices of appeal.

In an unpublished portion of the opinion we shall conclude the trial court erred in ruling the referendum petition was invalid in form. However, we shall further conclude the trial court correctly determined the resolution amending the general plan was subject to referendum and, as a consequence, did not go into effect until 30 days after its passage. Since the referendum petition was filed before the resolution was effective, and since the petition stayed the effect of the resolution, the resolution never took effect before superseding legislation was enacted by the Board. Consequently, the development agreement was never consistent with the general plan as required by Government Code section 65867.5.

B. Discussion

1. The Referendum Petition Was Valid. ^**

2. Because the Referendum Petition Was Valid, the General Plan Amendment Necessary to the Approval of the Development Agreement Never Took Effect.

Midway contends it has vested development rights as a consequence of its development agreement. ²¹ The trial court concluded that since the resolution amending the general plan was subject to referendum, the resolution was not effective for a period of 30 days after its passage to allow a referendum petition to be filed. The trial court reasoned that because of the delay in effectiveness, the development agreement was not consistent with the general plan when the Board enacted its ordinance approving the agreement. In order to show why the trial court's conclusion is correct, we will first expose a contretemps in the law and then provide a remedy for it. The contretemps is as follows:

It is settled that the adoption or amendment of a general plan is a legislative act subject to referendum. (Yost v. Thomas (1984) 36 Cal.3d 561, 570, 205 Cal.Rptr. 801, 685 P.2d 1152; Duran v. Cassidy (1972) 28 Cal.App.3d 574, 584, 104 Cal.Rptr. 793; O'Loane v. O'Rourke (1965) 231 Cal.App.2d 774, 783-785, 42 Cal.Rptr. 283.) Although a legislative act ordinarily may be undertaken by a local governmental entity either by resolution or ordinance (Crowe v. Boyle (1920) 184 Cal. 117, 149, 193 P. 111), Government Code section 65356 provides in pertinent part, "The legislative body shall adopt or amend a general plan by resolution, ..." (Emphasis added.)

However, the Legislature has failed to provide procedures by which a resolution adopting or amending a general plan may be subject to referendum. Thus, the statutory scheme enacted by the Legislature generally governing county referenda (Elec.Code, §§ 3750-3755.5) speaks exclusively of ordinances and fails to mention resolutions at all. (Unspecified statutory references are the Elections Code.) For example, section 3753 provides in pertinent part: "If a petition protesting against the adoption of an ordinance is presented to the board of supervisors prior to the effective date of the ordinance, the ordinance shall be suspended and the supervisors shall reconsider the ordinance." (Emphasis added.) Section 3751 ²² effectively provides that Iordinances subject to referendum shall not become effective for 30 days from the date...