ORANGE CITIZENS FOR PARKS AND RECREATION v. S.C. (MILAN REI IV)

Petitioners’ Petition for Review

Cal.August 19, 2013

/0 S212800 IN THE SUPREME COURT OF CALIFORNIA Case No. ORANGECITIZENS FOR PARKS AND RECREATIONet al., Petitioners, Vv. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; MILAN REIIV LLCetal., Real Parties in Interest. ORANGECITIZENS FOR PARKS AND RECREATIONetal., Plaintiffs and Appellants, Vv. MILAN REI IV LLCet al., Defendants and Respondents. After a Decision by the Court ofAppeal Fourth Appellate District, Division Three Case No. G047013 (consolidated with Case No. G047219) Appealfrom the Orange County Superior Court, Case No. 30-2011-00494437: The Honorable Robert J. Moss, Judge Presiding PETITION FOR REVIEW Rachel B. Hooper (SBN 98569) *Robert S. Perlmutter (SBN 83333) Susannah T. French (SBN 168317) SUPREME COURT Shute, Mihaly & Weinberger LLP FILED 396 HayesStreet San Francisco, California 94102 Aue 19 2013 Telephone: (415) 552-7272 Fax: (415) 552-5816 Attorneys for Petitioners Orange Frank A. McGuire Cler k Citizens for Parks and Recreation : Deputy and Orange Park Association TABLE OFCONTENTS ISSUES PRESENTED FOR REVIEW.......ccscssssessessessessesseresnecesseersnessetecssensesenessees 1 GROUNDSFOR REVIEW..csscsssssssssscscsssssssssssssssesuscesssscccssssssveseseeceseesenessessnssnnennes 1 STATEMENT OF THECASE soseenseeansesseesascesssesssuessssnesesuetentecees saseaseseseeseeeeteteseesees 7 A. FACTUAL BACKGROUND...wssseseoeseseeesccesennsnrecensensneteeeenee 7 1. The Project Application sesesscesetesseeseeeseeseeeeneneeteesernseeeeseseeaee 7 2. Milan’s New Theory.........-..sccscsscccsscesesseceeseeeeeseseeeesesenesees 8 3. Early Land Use History .0........:cccccccssessessesseeseesseseesesssenseseees 9 4. The 1989 General Plann .00........ecccccescesseseeseeseessesscereneesseees 10 5. The 2010 General Plana ..0......ccecceesescsseseesessetecseeeseeseeseees 10 6. Project Approvals and the Referendum..........s..sessceeeeeeee: 1] B. PROCEDURALHISTORY 00... ecececsscsscssesseneeseseeseseeeteeseenssecseeeee 12 C. THE COURT OF APPEAL DECISION...... cc ecccesceesessesseeseeeenes 13 ARGUMENT.......ccccsccscssssccesscceesneeseescesseseessessscescsecsesssseenesesesseatensessesesseaeessesess 14 I. THE COURT OF APPEAL ERREDIN FAILING TO APPLY THE UNAMBIGUOUSDESIGNATIONSIN THE CITY’S CURRENT GENERALPLAN.0.00. cceccssscscseescescsceeescececeseacscesesessenteeeesesessceeeeesesseneeees 14 A. The 2010 General Plan Plainly Designates the Property Exclusively for Open Space Use and Does NotIncorporate the OPA Plan. 20.0... cceecesessesesssssesecessesecsesssseecesesseseesesseseceeseceessaves 15 B. The 1973 Residential Designation Is Irrelevant BecauseIt was Never Implemented and Conflicts with the 2010 | General Plan Open Space Designation...............cccccsscsesseseeseeees20 C. The 2010 General Plan Supersedes All Prior General Plan POLICIOS......eeeeeeeeeeecesececceetsceesesesteceesscesceseesessssescensenetsessenecseenenes 24 D. The Court of Appeal’s Holding that General Plan Amendments Are Not Sufficient to Supersede Pre-Existing Policies Will Cause Planning Chaosoveseecsceesececoeecssenseaerseseeateeseeenes 26 E. The Legislative Intent Behind the Adoption of the 2010 General Plan Is Determined by the City’s Actions in 2010, Not by the Post-Hoc Findings of the City Council in Approving Milan’s Development...............:cccssscesseceessssessesecnecseeees 28 II. THE COURT OF APPEAL ERRED IN HOLDING THAT THE PROJECT COULD PROCEED DESPITE INTERNALLY INCONSISTENT GENERAL PLAN DESIGNATIONS FOR THE PROPERTY.000...ceccsccssesscssescseseeesstscecseeesessesessnesseeseassceeesssesssessenseuensentes 33 CONCLUSION...eeeeeceeeeeeneeeeenee sssareseoesseseeveneneneaceveneasensoeescresecnenecssacanserasaes 39 li TABLE OF AUTHORITIES Page(s) State Cases California Fed. Sav. & Loan Ass’n v. City ofL.A., 11 Cal.4th 342 (1995).ccceccessscseesssessesesseseecsesssssessscsecsscsecssesenes 37 California Trout, Inc. v. State Water Res. Control Bad.,, 207 Cal.App.3d 585 (1989)... ccccsseseessessessessenscssessecscessessseessessaeseces32 Citizens ofGoleta Valley v. Board ofSupervisors, 52 Cal.3d 553 (1990)...ccscessesseseessesscescesessesscseesscssecsecssssssssesssaseneseeees4 City ofPoway v. City ofSan Diego, — 229 Cal.App.3d 847 (1991)... eeeeeceseectstseseseeeseseseestsesereseeze DOSSIM Concerned Citizens ofCalaveras County v. Board ofSupervisors, 166 CalApp.3d 90 (1985)... ecccccccsesssesssecsessesesescssesseseeceesenseees 6, 35, 36 County ofSutter v. Board ofAdmin., 215 Cal.App.3d 1288 (1989) uo.cccescsscscessesessesseseesessesecsssssssssscsvseeeses 33 Cow Hollow Improvement Club v. DiBene, 245 Cal.App.2d 160 (1966)... ccccccescssscsesssssesessessesscsesecssssscssesessessenens26 DeVita v. County ofNapa, 9 Cal.4th 763 (1995)... eccccsssssessssssssenecesecssesersesesccsceeseaesneees 3, 4, 36, 37 Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal.4th 1036 (1999)...ccccsssessesseesscesscssssecseesssssessccssesscssssseeseasees 28 Families Unafraid to Uphold Rural El Dorado County v. Board o Supervisors, 62 Cal.App.4th 1332 (1998)...ccc ccessceseesseeeeeees Leneeseeeseseesseesseeeseesees 19 Harroman Co. v. Town ofTiburon, 235 Cal.App.3d 388 (1991)... eececsessesseseeseesessssesscseessessssscsssecsens passim Kings Cnty. Farm Bureau v. City ofHanford, 221 Cal.App.3d 692 (1990)... ececccsessessecsesssscssssecsessesssssssscassnseseaeeees 33 Las Virgenes Homeowners Federation Inc. v. County ofLos Angeles, 177 Cal.App.3d 300 (1986)... ccceesssssesscssesessesssscesesssssssscsssesserssesesaes 18 ill Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990)... ccccescsssesseseesceessesessssessssessscsassserseeeess passim Midway Orchards v. County ofButte, 220 Cal.App.3d 765 (1990) ........cccccsssssesesssssesessecsessecseesessssssssssecsecssesseas 19 Peralta Cmty. Coll. Dist. v. Fair Emp’t & Hous. Comm’n, 52 Cal.3d 40 (1990)... eccccsssscssessessesesessessesscssesseeseseessssessssscasesesesseeeee31 Professional Eng’rs in Cal. Gov’t v. Kempton, 40 Cal.4th 1016 (2007)...cccccsssssscessescssessescesscseesceseseessesessssccsessessceases26 Rossi v. Brown, 9 Cal4th 688 (1995)... eesessessessesessessssessessessesteseecseseesessesssensenene 6, 7, 37 Sierra Club v. Kern County, 126 Cal.App.3d 698 (1981) .......cccccscsssssscesessesesseeessecsnsessesssesenae 6, 34,35 . Yost v. Thomas, 36 Cal.3d 561 (1984)...eeeesccssesesssssesensescessesnesseesesscecsesecsesscssersseveae 36 State Statutes California Rules of Court § 8.500(D)CL) .0..eeeceeccessssesesssscceecessssecvesseceesesessasscseesessessecsececssaseusceeess4 § 8.504(])(L)(C) cececscccceesccssssseccssssecessucsssssecesssssesessucssssesessseseseseesesscsuseeseneseees 11 Government Code § 65300.cccccssssssesssvssssssssssssesessseeussensssessessseseeasesesssensuasasssnuassesnesenes 14, 27 § 6530.5 ccecsssssssseccsssseessssessansesussssssnnssssesnsseesnsnssseesiaseseunseseneente28, 33 § 65302(a).o.eeeececscsssesscssesessecsesessesesecscssssesesscssssesssescsnsrsacsesussrsarsecatsarsesseseesea 5 § 65357(b) sestnnitisnnnnntnnnntentenieniinenieaietiettttst seeccssesasseee29 oe 19 § 65754 cccccccsssceesesnsssseeseevtnttnstnstnntuptsiutisiasene35 § 65860ccsesesesenenennennsnununssistutiunusstaausueee 19, 34 § 65867.5(b) ceccseeeeeeee sesssssstsnsseseusenssneseevnnnseeesennssesesessassssserssssesscsssssesses] 9 iv § 66473.5......04Veececcccceccssenencecoccrecsescessvscsceesesacscetaeacsescescsencnsccrccscccacecesceeseese 19 Other Authorities Governor’s Office of Planning and Research, General Plan Guidelines .0....ccccccccccccccessescccesssssssssecsessesssceceesseaees 15, 16, 28 ISSUES PRESENTED FOR REVIEW 1. Wherea city’s current general plan contains an unambiguousland use designation for a piece of property, can this designation be superseded by a conflicting designation adopted 40 years ago in 1973? 2. Wherea city, in 1973, adopts a resolution modifying the designation for a piece of property, but where that designation is never implemented, never appears on the face of any publicly-available plan, and conflicts with the designationin the city’s subsequently-adopted general plans, is the 1973 designation the controlling land use designation for the Property? 3. Wherea city council adopts a general plan amendment to resolve internal inconsistencies in its general plan, and the amendmentis defeated by referendum, can the court itself resolve the inconsistencies by invalidating portions ofthe general plan in a mannercontrary to the will of the voters? GROUNDSFORREVIEW The Fourth District’s decision in Orange Citizensfor Parks and Recreation v. Superior Court, 217 Cal.App.4th 1005 (July 10, 2013) (“Opinion,” attached as Exhibit A), turns California planning law upside- down. It holdsthat a land use designationin a city’s recently adopted > oegeneral plan—thecity’s “constitution” for development—can be trumped by a designation set forth in a 1973 resolution that was buriedin file drawer and forgotten for decades. It mandates deferenceto a city council’s post-hoclitigation position, upholding an untenable “interpretation”ofthe city’s generalplan that flatly contradicts its plain language. Finally, the Opinion holds that a city council can thwart the will of the voters by claiming that, under its new interpretation, its own general plan amendment—whichthe voters resoundingly rejected—wasnever necessary in the first place and the referendum is therefore irrelevant. Theproperty at issue in this litigation has been designated “Open Space”in the City of Orange General Plan for decades. Thus, in order to proceed with its controversial development project, Respondent Milan REI ITV LLC (“Milan”) requested, and the Orange City Council approved, a General Plan Amendment (“GPA”), changing the land use designation of Milan’s Property in the General Plan Land Use Map from Open Spaceto residential. Milan and the City understood.that the GPA wascritical to ensure consistency between Milan’s proposedresidential subdivision (“Project”) and the General Plan. Indeed, it was precisely for this reason that Milan vigorously urged the City Council in May 201 1—and throughout the previous four years—to adopt the GPA; otherwise, Milan cautioned, its Project would not be “approvable.” In adopting the GPA,the City Councillikewise found that the GPA would makethe designations for Milan’s Property “consistent throughout the General Plan.” After the referendum challenging the GPA wasplaced onthe ballot, however, Milan and the City changed their tune. They now argued, to the courts below,that the GPA wasentirely unnecessary and that Milan’s Project could go forward regardless of the referendum. The Court ofAppeal agreed. Despite the voters’ rejection of the GPA on November6, 2012, the Court held that Milan’s Project conformsto the City’s General Plan and can proceed. But how can a residential subdivision be consistent with a General Planthatclearly designates the Property for Open Space? Because, the Court ofAppeal found, the long-standing Open Space designationis “erroneous”; the Property’s real and controlling “General Plan” designation is a residential one buried in a 1973 City resolution proposing to amend the “Orange Park Acres Specific Plan” and incorporate that document into the City’s previous (and long since superseded) general plan atthat time. This Court has notissued a significant decision addressing general plan law sinceits landmark decision in DeVita v. County ofNapa,9 Cal.4th 763 (1995), more than 18 years ago, which reaffirmed the general plan’s role as a community’s land use constitution. The Opinion undercuts not only DeVita, but also at least four other lines of cases establishing the most basic tenets of modern planning law. Accordingly, review is warrantedto re-establish the primary role of the generalplan in local planning throughout California andto resolve several direct.conflicts between the Opinion andestablished appellate and Supreme Court precedent. See Cal. Rule of Court 8.500(b)(1). | First, decades of Supreme Court precedentestablish that the general plan is “located at the top of‘the hierarchy of local government law regulating land use.’” DeVita, 9 Cal.4th at 773 (citation omitted); see Citizens ofGoleta Valley v. Board ofSupervisors, 52 Cal.3d 553, 570-71 (1990) (“The general plan has been aptly described as the ‘constitution for all future developments’ within the city or county,” and thus ““[t]he propriety of virtually any local decision affecting land use and development depends uponconsistency with the applicable general plan.’”). The Court ofAppeal, however, held that the controlling land use designation for the Property is a residential designation that appears nowherein the City’s current—or any previous—General Plan,but is set forth solely in a 1973 City resolution. The Opinion also ignores this Court’s mandate that courts must give effect to the plain text of a city’s general plan. Lesher Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531, 543 (1990). The City’s 2010 General Plan unambiguously designates the Property as Open Space and defines the Orange Park Acres Plan as a subordinate “specific” or “neighborhood”plan that must be revised to comport with currentGeneral Plan policies. The Court ofAppeal, however, ignored this objective language and effectively rewrote the City’s General Plan to eliminateits long-standing Open Space designation and replace it with a residential one from a subordinate plan. In so doing, the Court ofAppeal engagedin precisely the type of retroactive amendmentby “judicial fiat” that this Court has roundly condemned. /d. at 541 (holding that a land use regulation thatis not understood by the adopting bodyas being part ofthe current general plan cannot “becomesuchretroactively by judicial fiat’). Second, the Opinion is inconsistent with HarromanCo. vy. Town ofTiburon, 235 Cal.App.3d 388, 396 (1991), which holds that where a city adopts a comprehensiverevision to its general plan, the revised general plan supersedes the previous general plan. The Court of Appeal instead held that, despite its blatant inconsistency with the 2010 General Plan, the 1973 version of the City’s generalplanis controlling today because it was never expressly repealed. Third, the Opinion directly conflicts with City ofPowayv. City ofSan Diego, 229 Cal.App.3d 847, 862-63 (1991), which holds that a general plan amendmentis ineffective whereit is never implemented, never appears on the face of the publicly-available version of the generalplan, and conflicts with the current general plan. The Court ofAppeal here held that the 1973 residential designation, which never appeared on the face of any City plan and was forgotten for decades, was nevertheless valid and that it superseded the Open Space designation for the Property in the current General Plan. Fourth, the Opinion creates a conflict with the Third and Fifth Districts’ decisions in Sierra Club v. Kern County, 126 Cal.App.3d 698, 703-04 (1981), and Concerned Citizens ofCalaveras County v. Board of Supervisors, 166 Cal.App.3d 90, 104 (1985), which hold that where a general plan contains inconsistent designations for a piece ofproperty, no development may be approved until the inconsistencies are resolved through a general plan amendment. Here,after noting that the GPA proposedby the City to resolve the Property’s conflicting designations was rejected by referendum, the Court of Appeal simply dismissed the current Open Space designation as “erroneous” and declared that Milan’s development could proceed underthe conflicting 1973 residential designation. Finally, the Opinionis inconsistent with Rossi v. Brown, 9 Cal.4th 688, 704 (1995), which holds that the constitutionally reserved powersofinitiative and referendum give the people “thefinallegislative word.” Here, the voters rejected the City Council’s attempt to change the Property’s General Plan designation from Open Spacetoresidential. The Opinion, however,effectively nullifies the referendum by dismissingthe OpenSpace designation as invalid. While this Court has repeatedly admonishedthat the local referendum poweris “‘one of the most precious | rights of our democratic process,’” whichit is the “duty of the courts to jealously guard,’”(id. at 695 (citations omitted)), the Opinion declares the referendumpower here to be meaningless. Central to all these issues is a question of vital importance to land use planning throughout the State: can a city or county circulate a general plan for public review, formally adoptit, distribute it to the public, and place it on its website as its official General Plan, and then turn around and declare that its “real” general plan containsentirely different land use designations and land use plans? ' Prior to this Opinion, the case law—and common sense— uniformly held that the answer was “No.” This Court should accordingly grant review to reaffirm what the Court ofAppeal has nowcalled into question: that the “constitution” for developmentforcities and counties throughout California is the general plan formally adopted bythelegislative body andthat it can be amended only through a general plan amendment subject to referendum by the voters. STATEMENT OF THE CASE A. FACTUAL BACKGROUND 1. The Project Application In 2007, Milan applied to the City for permission to develop a 39-unit residential subdivision within an area of the City known as “Orange Park Acres.” Milan’s application, as well as all initial planning documents, acknowledgethe Property’s Open Space designation in the City’s General Plan, the Orange Park Acres Specific Plan, and the City’s applicable zoning. See generally Administrative Record (“AR”), volume6, pages 2177-82 (hereinafter cited as AR-6:2177-82) (Project summary from the City’s Draft Environmental Impact Report (“DEIR”)). Milan therefore requested a General Plan amendment, a specific plan amendment, and a rezone to change the Property’s designation from Open Spaceto residential. Jd. 2. Milan’s New Theory In late 2009, after facing considerable community resistance to its proposed development, Milan’s lawyers presented the City Attorney with a binder ofhistoric resolutions allegedly supporting a remarkable new theory:’ that the applicable land use designation for the Property was not the Open Space designation in the City’s official General Plan, as had been universally understood,but rather a “low-density” residential designation appearing in a 1973 Planning Commission Resolution (and nowhereelse). ' See Petitioners’ Appendix of Exhibits, filed 06/08/12 in consolidated case G047013, volumeII, tab 11, page 389, 4 3 (hereinafter cited as PA- II:11:APP389). 3. Early Land Use History The City adopted the Orange Park Acres Specific Plan (“OPA Plan”) in 1973, when the Property lay exclusively within the jurisdiction of Orange County. Onits face, the OPA Plan has always designated the Property as “Golf Course” and “Local Parks,” designations which do not allow residential development. AR-11:5037. At the end of the planning process, and apparently in an effort to forestall developmentpressuresin the area, the City’s Planning Commission recommended that the OPA Plan be approved as “part of” the general plan. AR-9:3676. It also recommendedthat the Property’s land use designation be amendedto allow for both open space andresidential uses. AR-9:3677. On December26, 1973, the City Council adopted the OPAPlan as amendedby the Planning Commission. AR-9:3688-89. Over the years, the City has inconsistently referred to this documentas a “specific plan,” a “part of previous generalplans, an “area plan,” and a “neighborhood plan.” However, during this 40-year period, neither the text nor the maps ofthe OPA Plan (or the General Plan) were ever amendedto apply the residential designation recommendedby the Planning Commission to the Property. Rather, as Milan and the City have repeatedly conceded, the OPA Plan available to the public has always designated the Property solely for open space uses. AR-4:1895 4 4, 1429. 4. The1989 General Plan In 1985, the Property was annexedto the City. In approving the annexation, the City Council found: The configuration ofthe proposed parcels would increase the potential for developmentto other than recreation oriented uses, but it is noted that, at a minimum, a General Plan Amendment and Zone Change would be required to allow other uses. AR-9:3880 (emphasis added). In other words, the City Council expressly found that a General Plan amendment wouldbe required to allow residential uses on the Property. In 1989, the City adoptedits first comprehensive general plan update since the mid-1970’s. AR-11:4621; 14:5941. The 1989 General Plan providesthat the “single most important feature” of its Land Use Elementis “the Land Use Policy Map.” AR-11:4634. This map designates the Property solely as Open Space/Golf (“OS/Golf’). AR-14:5919; PA- Il:8:APP295. 5, The 2010 General Pian On March 9, 2010, the City Council approved a City-wide “Comprehensive General Plan Update” (“2010 General Plan’). AR- 10 14:6277-80. The 2010 General Plan also designates the Property exclusively as “Open Space.” Exhibit B hereto at 7-8; Opinionat 17. 6. Project Approvals and the Referendum Although Milan waslargely successful in persuading the City Attorney to adoptits self-serving theory, City staff recognizedthatthis theory created a new problem: the 1973 residential designation conflicted with the existing open space designations in the 2010 General Plan and the OPA Plan. Accordingly, given the well-established law requiring general plan consistency, the City acknowledgedthat the Project could not be approved without a General Plan amendment. AR-2:502-03. Just weeks before the approval, Milan’s lawyersalsoreiterated their request for the GPAsothat the Project would be “100% approvable.” AR-4:1429. On June 14, 2011, the City Council approved Resolution No. 10566, adopting a GPA forthe Projectthat: (1) changes the 2010 General Plan Land Use Policy Map designation for the Property from “Open Space” to “Other Open Space & Low Density”; ? Pursuant to Rule of Court 8.504(e)(1)(C), highlighted excerpts of the City’s 2010 General Plan are attached hereto as Exhibit B. The entire General Plan is at AR-10:4010. 1] (2) changes the OPA Plan Mapdesignation for the Property from “Golf” and “Local Parks” to “Other Open Space & Low Density”; and (3) eliminates the text in the OPA Plan requiring the permanentprotection of the golf course. AR-4:1952-53, 1960, 1963; see Opinionat21. One monthlater, after Petitioners Orange Citizens for Parks and Recreation and Orange Park Association (collectively, “OCFPR”) submitted the Referendum ofthe GPAto the city clerk, the City rezoned the Property from “Recreation/Open Space”to residential (the “Zone Change”), and adopted a Development Agreementfor the Project. AR- 4:1827-32, 1833-78. On November6, 2012, City voters defeated the Referendum by a 56% vote, thereby rejecting the GPA adopted by the City Council. Opinionat3. B. PROCEDURAL HISTORY On July 26, 2011, Milan filed suit against the City, followed by cross-complaints by both OCFPRand Milan. All claims regarding the GPA’slegal effect, the validity of the Development Agreement and Zone Change, and the legal effect of the Referendum were ultimately severed and briefed based on the Administrative Record. PA-I:5:APP090. Thetrial court granted Judgment for Milan, and against OCFPR,on these claims and 12 issued a writ commanding the City to remove the Referendum from the November ballot. AA055-59, AA078-83. Following an appellate writ petition by OCFPR,the Court of Appealstayedthetrial court’s Order and writ, thereby allowing the Referendum election to proceed. OCFPR’s appellate writ action was ultimately consolidated with its appeal from the Judgment. C. |THE COURT OF APPEAL DECISION On July 10, 2013, the Court ofAppeal, in a published decision, upheld the trial court’s Judgment. Nopetition for rehearing was filed. The Opinion holds that Milan’s Project is consistent with the General Plan because: (1) the OPA Plan is part of the 2010 General Plan, and (2) the 1973 residential designation is part of the OPA Plan andis the controlling land use designation for the Property today. Opinion at 32-37. The Court ofAppeal first held that the City Council in 2011 could reasonably have concludedthat the general plan in the 1970’s designated the Property for low density residential use. Jd. at 36-37. While the Court acknowledged that both the 1989 and 2010 general plans designated the Property exclusively for Open Space,it held that this was insufficient to change the 1973 designation absent evidence of an express intent to do so. /d. at 37-38. The Court of Appeal also acknowledgedthatifthe OPA Plan was considered part of the City’s current General Plan and designated the 13 Property for residential use, this designation would conflict with the Open Space designation in the 2010 General Plan. Jd. at 40. The Court, however, held that such a stark inconsistency did not render the developmentapprovals invalid, concluding instead that the long-standing Open Space designation was simply “erroneous” and that the City was therefore entitled to ignore it, despite the Referendum. /d. at 42. ARGUMENT I. THE COURT OF APPEAL ERREDIN FAILING TO APPLY THE UNAMBIGUOUSDESIGNATIONSIN THE CITY’S CURRENT GENERALPLAN. This case revolves around a central legal question: what was the City’s statutorily mandated “comprehensive, long-term general plan” (Gov. Code § 65300") whenthe City approved Milan’s Project in 2011? In answering this question, the Court ofAppeal rejected the “straightforward” argument put forth by OCFPR:that, as a “matter of law,” a city’s general plan consists of “the most recent objective evidence of the generalplan (i.e., text and diagramspresented to the public as the general plan).” Opinion at 3, 27, 32 (emphasisin original). Rather, the Court concluded that even if the “uninformed observer” might look to the face of the general plan to determine applicable land use designations(id. at 27), the real designations could be found elsewhere, in this case, in a long- 3 All undesignated statutory references are to the Government Code. 14 forgotten 1973 resolution amending the OPA Plan. This conclusionis a dramatic departure from established planning law andwill radically transform the role of general plans throughout California. A. The 2010 General Plan Plainly Designates the Property Exclusively for Open Space Use and DoesNot Incorporate the OPA Plan. The Court ofAppeal accurately summarizes the law concerning the interpretation of general plan language: ‘Absent ambiguity, we presumethat the’ adopting body intended the meaning onthe face of an enactment ‘and the court may notadd to the statute or rewrite it to conform to an assumedintentthat is not apparent in its language.’ Opinion at 37 (quoting Lesher, 52 Cal.3d at 543). In contravention of this bedrock principle, however, the Opinion then proceedsto ignore the unambiguous language of the 2010 General Plan. The heart of the generalplan is the “land use element,” which designates the “location and extent of the uses ofthe land for housing, business, industry [and] open space.” § 65302(a). Cities and counties almost universally establish the applicable land uses by including a mapin their general plans, as the City did here, which is then relied upon by public officials, planners, developers, and the entire community to determine the governing developmentstandards. See Governor’s Office of Planning and Research, General Plan Guidelines at 14 (2003) (noting that “a diagram or diagrams, along with the generalplan’s text, should be detailed enough so 15 that the users ofthe plan, whether staff, elected and appointed officials, or the public, can reach the same general conclusion on the appropriate use ofanyparcel ofland’) (emphasis added).* | The 2010 General Plan contains no ambiguity with regard to the land use designation for the Property. As the Opinion notes, “The 2010 Policy Map designated the Property as ‘OS’ (Open Space).” Opinion at 17; see Exhibit B at 7. The Plan’s map of “Open Space Resources”likewise designates the Property exclusively for Open Space. Exhibit B at 8. No other designationfor the Property appears anywhere in the 2010 General Plan. Noris there any ambiguity with regard to the role of the 2010 Land Use Policy Map. The Land Use Element provides: Another important feature of this Elementis the Land Use Policy Map, which indicates the location, density, and intensity ofdevelopment Jorall land uses citywide. The proposed land use designations identify the types and nature of developmentpermitted. throughout the planning area. Exhibit B at 4 (emphasis added). Indeed, the General Plan expressly directs the City to “[e]nsure that City land use decisions are consistent with . . . the land uses shown on the Land Use Policy Map.” Exhibit B at 9. * Available at http://www.opr.ca.gov/s_generalplanguidelines.php. 16 The 2010 General Plan is also unambiguous with regard to its ownscope. The 2010 GeneralPlanitself states: “The General Plan document is comprised ofthis Introduction, and eleven elements.”” Exhibit B at 2; id. at 1. Finally, the 2010 General Plan is unambiguous regarding the subordinate status of the OPA Plan. The 2010 General Plan expressly underscores its own role as the City’s controlling land use charter, declaring that “State law places the General Plan atop the hierarchy of land use planning regulations” and that “other City plans must conform to General Plan policy direction and work to implement the General Plan.” Exhibit B at 2 (emphasis added). The General Plan then identifies these subordinate “other City plans”as including “Orange Park Acres.” Id. at 3; see alsoid. at 6 _(“Specific Plans and NeighborhoodPlanscurrently in effect include:. . . Orange Park Acres”). “Eachofthese plans and any future specific plans adopted by the City,” the 2010 General Plan confirms, “must be consistent with the policies expressed in this Element.” Id. at 6 (emphasis added); see also id. at 10 (directing the City to “implement and update, as needed”the City’s “adopted specific plans and neighborhoodplans,”including “Orange Park Acres”). Thus, while the Court ofAppeal suggests, withoutcitation, that the 2010 General Plan contains “contradictory references” to the OPA 17 Plan (Opinionat 39), the plain text of the 2010 General Plan shows otherwise. In support of its conclusion that the plain text of the 2010 Planis not controlling, the Court ofAppeal relies on Las Virgenes Homeowners Federation Inc. v. County ofLos Angeles, 177 Cal.App.3d 300 (1986). Las Virgenes, however, presents a completely different factual scenario from the present case. Indeed,it confirmsthat, in interpreting a general plan, the courts must look to the plan’s plain language. Las Virgenes foundthat, although the mapsin an area plan and the county general plan appeared superficially to have conflicting residential density levels for the property at issue, these seeming inconsistencies were reconciled bythe plain text of that county’s general plan. Asthe court emphasized, that plan “states repeatedly that[its] policy mapsare general in character andare notto be interpretedliterally or precisely.” Id. at 3 10 (emphasis added). It also expressly included the area plans as “componentparts” that “establish more specific residential density ranges.” Jd. at 310-11. Here, the City’s 2010 General Plan could not be more different. It mandates that all other City land use decisions must be “consistent with . . . the land uses shown on the Land Use Policy Map” and defines the OPA Plan as a specific or neighborhoodplan that must “be consistent with” General Plan policies. Exhibit B at6, 9. 18 Thus, the General Plan makesclearthatit is the OPA Plan which must conform to the General Plan, and not the other way around. Indeed, “no reasonable person ... could conclude otherwise.” Families Unafraid to Uphold Rural El Dorado County v. BoardofSupervisors, 62 Cal.App.4th 1332, 1341-42 (1998) (invalidating county’s finding that project is consistent with general plan policy). Neither the courts nor a city council can “interpret” a general plan in a mannercontrary to its plain language. Wherethere is a conflict betweena general plan provision and a provision outside the generalplan, “{t]he general plan stands.” Lesher, 52 Cal.3d at 541 (“Thetail does not wag the dog.”). Thus, here, the plain language of the City’s 2010 General Plan—which unambiguously designates the Property as Open Space and identifies the OPA Plan as a subordinate document—muststand. Bylaw,a land use approval“that conflicts with a general plan is invalid at the timeit is passed.” Lesher, 52 Cal.3d at 544; id at 536, 545 (invalidating inconsistent zoning ordinance ); Midway Orchards v. County ofButte, 220 Cal.App.3d 765, 783 (1990) (invalidating inconsistent development agreement); §§ 65860(a), 65867.5(b), 66473.5, 65567 (mandating consistency between developmentand the applicable general plan). Because Milan’s Project is inconsistent with the current General Plan’s clear Open Space designations, the Project cannot go forward. 19 B. The 1973 Residential Designation Is Irrelevant Because It was Never Implemented and Conflicts with the 2010 General Plan Open Space Designation. Rather than upholding the unambiguous 2010 General Plan’s Open Space designation, the Court ofAppeal determined that the 1973 residential designation constitutes the City’s controlling general plan designation today. Opinion at 43. This finding is directly contrary to Poway, 229 Cal.App.3d at 863. In Poway, a city amended a community plan to allow a long- term road closure, and subsequently adopteda resolution incorporatingthis amendmentinto its general plan. Jd. at 853-54, 861-62. When the road closure was challenged three yearslater, the city argued that the continued road closure was consistent with its general plan, as modified by the amendment. /d. The Court ofAppeal disagreed, holding that the amendment wasnotlegally effective because the resolution “was forgotten by the public officials charged with creating and implementing it” and because the general plan was never amended ina publicly-available documentto reflect the proposed change. Jd. at 862-63. In addition, the court noted that the city’s general plan and maps showed“the road to be an open major road.” Id. at 862. Thus, the amendment wasalso invalid becauseit was inconsistent with the publicly-available general plan. Jd. at 863. 20 Here,the facts are essentially identical, except that the resolution at issue in Poway was “forgotten” only for three years(id. at 854-56, n. 4), whereas the 1973 residential designation was forgotten by the City, the Property owners, and the public for 36years—from 1973 until late 2009. The Opinion acknowledges that Poway provides “some authority” to support OCFPR’s position. Opinion at 35. However,it then sets forth a numberofgrounds for distinguishing Poway. Noneofthese are persuasive. For example, the Opinionstates that, unlike Poway,it is “reviewing the City Council’s characterization ofits own generalplan.” Jd. But in Poway, the respondent city wasalso urging the court to adoptits - owncharacterization of its own general plan. While viewing the “evidence in the light most favorable to respondent” city, Poway nevertheless held it wasthe generalplan available to the public, not the never-implemented version relied upon by the city, which controlled. 229 Cal.App.3d at 859, 861-62. The Opinionalso notes that the forgotten resolution in Poway amendedthe city’s general plan to incorporate changes to a community plan, whereas, here, the forgotten resolution amendedthe city’s general plan to incorporate and amend the OPA Plan. In both cases, however, the allegedly binding amendmentwasneverincludedin the generalplan and therefore waslegally ineffective. 21 In addition, the Opinionstates that “because of the lengthy amount of time”that has passed, hereit is “less clear here what was made available to the public” when the resolution was adopted “in the 1970’s.” Opinion at 36. But the dispositive issue is not what documents were available to the public in the 1970’s, but what wasavailable to the public in the 40 yearssince. Here, as in Poway, it is undisputed that the City never implemented the 1973 resolutions by amendingeither its General Plan or any publicly-available copy of the OPA Planto reflect a residential designation for the Property. Indeed, Milan’s own lawyers acknowledged that all available copies of the OPA Plan overthe past 40 years show the Property designated for open space uses: It is our understanding that the “over-the- counter” copy ofthe OPA Plan,as well as the copy available on the City’s website, . . . does not include the Planning Commission’s recommended changesto the text which were adopted by the City Council. Additionally, there appearto be no copies ofthe OPA Plan which have been edited to reflect the OPA Plan as originally adopted. AR-4: 1429 (emphasis added). Likewise,in approving the Project a month later, the City Council expressly found that “the textual changes recommendedby the Planning Commission and approvedby the City Council [in 1973] were never entered into any official copy of the OPA Plan.” AR-4:1895, 4. While granting great deference to the City’s 22 litigation position elsewhere, the Court ofAppealtrivializes this factual finding of the City Council, erroneously characterizing it as “specula[tion]” in an “environmental planning document.” See Opinion at 13; but see id. at 32-33 (acknowledgingthereis “no evidence”that the OPA Plan was ever amendedto include a residential designation). The City, moreover, expressly conceded below that “between 1973 and 2009it appears to have been forgotten that the City Council adopted the Open Space/Residential designation.” PA-II:11:APP384 (lines 1-2). Thus, in 1985, when the Property owners submitted an application to annex the Property into the City, their application listed the “General Plan Land Usedesignation for the site”as “Recreation/Open Space.” AR- 9:3818. City staff concurred. AR-9:3893 (“[T]he Land Use Elementofthe General Plan and the [OPA] Plan designate[] the area for Open Space and Recreation uses.”). The City Council likewise found at the time that “a General Plan Amendment and zone change would be required to allow other uses” than recreation on the Property. AR-9:3880.. In 2007, Milan too certified in its development application and Initial Study that the Property was designated for Open Spacein the City’s General Plan and requested amendments to the General Plan and OPA “Specific Plan” to allow residential use. AR-9:4002; AR-14:6068. Andboth the 1989 and 2010 General Plans clearly designated the Property exclusively for Open Space. 23 Thus, Poway indisputably controls here: the 1973 residential designation is legally ineffective today both because it was immediately forgotten and never implemented and becauseit directly conflicts with the Property’s Open Space designationin all applicable City land use plans for the past 40 years. C. The 2010 General Plan SupersedesAll Prior General Plan Policies. Evenif, as the Court ofAppeal concludes, “the City’s general plan in the 1970’s included a designation of the Property as . . . low density residential” (Opinion at 36-37), it no longer does today. The relevant land use designation for the Property is not the general plan designation from 1973, but the designation in effect in 2011, when Milan’s Project was approved. Harromanestablishes the unremarkable proposition that whena city or county adopts a new generalplan, the land use designations in previous general plans are no longer applicable. In Harroman, a | developer alleged that the “applicable general plan”for its development proposal was not the draft general plan being prepared undersection 65361, but the general plan in placeat the time of its development application. 235 Cal.App.3d at 391-92. The court disagreed, finding that the revised general plan “effectively suspend[s] the provisionsofthe existing general plan under review”andthat the existing plan was therefore “abated or 24 suspended.” Jd. at 396. Harroman recognizes that, under the circumstancesset forth in section 65361, development mayberequired to comport with a revised general plan even beforeit is officially adopted, and that even a draft revised general plan will “abate” and “suspend” the operation of the existing general plan policies. Thefacts here are even more compelling. The applicable General Planis not a draft revision prepared under section 65361, but a comprehensive City-wide General Plan Update formally adopted by the City Council a yearprior to Project approval. The record makesindisputably clear that the 2010 General Plan was prepared and adopted as a complete, comprehensive city-wide revision of the entire prior general plan. AR-10:4028, 4031. In its Notice of Preparation, for example, the City announcedits intention to complete a “comprehensive update of its adopted General Plan.” AR-14:6121; see also AR-14:6170 (The “Comprehensive General Plan Update represents a complete updating of the City’s 1989 General Plan.”). Four yearslater, in its resolution approving the 2010 General Plan, the City Council likewise expressly foundthatit “provides the City and its citizens with a shared community vision, goals, policies, and implementation programs.. . , rather than relying on the content ofthe 1989 General Plan which has realized diminished relevance overthe course ofits 20 year lifespan.” AR- 14:6278 (emphasis added). 25 The City’s formal adoption of the 2010 General Plan thus clearly “abated” and “suspended”the operation ofthe 1989 General Plan, which,in turn, “abated” and “suspended”the operation of any pre-existing general plan policies, including those in effect in 1973. Harroman, 235 | Cal.App.3d at 396; see also Cow Hollow Improvement Club v. DiBene, 245 Cal.App.2d 160, 176 (1966) (zoning ordinance that “constitutes a | completely new expression on the subject by the . . . local legislative body [and] affects every parcel of real property within the city ... effects a repeal ofall existing zoning ordinances”); Professional Eng’rs in Cal. Gov't v. Kempton, 40 Cal.4th 1016, 1038 (2007) (wherelater law “constitute[s] a revision of the entire subject,” it will “repeal or supersede” the prior law). D. The Court of Appeal’s Holding that General Plan Amendments Are Not Sufficient to Supersede Pre- Existing Policies Will Cause Planning Chaos. By ignoring the well-established principles discussed above, the Opinion effectively holds that general plan designations which have been amendedthrough a formally-adopted general plan revision nevertheless remain in effect unless they have been expressly repealed. This holding not only conflicts with existing law, but also will throw land use planning throughout California into chaos. Here, for example, under the logic of the Opinion, the entirety ofthe City’s 1989 General Plan, as well as the entirety of the 1973 General 26 Plan, remain in effect today because neither of these documents was expressly repealed. In other words, the City now has not one comprehensive general plan—asstate law expressly requires (§ 65300) and as the 2010 General Plan proclaimsitself to be—butat least three. Moreover, this would betrue not just in the City of Orange, but in every jurisdiction that has ever adopted a general plan amendment or a new comprehensive general plan without expressly repealingall the pre- existing policies, a practice which is hardly uncommon. Rather than looking to the most recently adopted general plan to determine the applicable designation, a planner, public official, or property owner would be required to searchhistoric resolutions, plans and policies for conflicting designations; determine whether they were ever expressly repealed; - ascertain based ontheir legislative histories the “true” intent of the adopting body; and then attempt to resolve which designation is controlling. Even after undertaking this analysis, no one could be sure whether someother person or entity might unearth different historic documents, as Milan’s attorneys did here, or how the local governmentor the courts would resolve any conflicting policies. | Clearly, this is not and cannot be the law. The Court of Appeal’s holdingflies in the face ofthis Court’s insistence that, in determining a proposal’s consistency with the general plan, “[o]nly the general plan in effect at the time the [proposal] is adopted is relevant.” 27 Lesher, 52 Cal.3d at 545. Moreover, it renders meaningless the declared intent of the Legislature that “that the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statementofpolicies.” § 65300.5; see also General Plan Guidelines, supra n.4, at 14. E. The Legislative Intent Behind the Adoption of the 2010 General Plan Is Determined by the City’s Actions in 2010, Not by the Post-Hoc Findings of the City Council in Approving Milan’s Development. The Court of Appeal’s conclusion that the OPA Plan “remained part of the City’s general plan [in 2010], as it was when adopted in 1973,” purports to rely on the “intent of the adopting body.” Opinion at 38, 37 (quoting Lesher, 52 Cal.3d at 543). Given the unambiguous language of the 2010 General Plan, however, it is not only unnecessary, but plainly inappropriate, for the court to look elsewhere to determine the General Plan’s meaning. Lesher, 52 Cal.3d at 543; see also Diamond Multimedia Systems, Inc. v. Superior Court 19 Cal.4th 1036, 1047 (1999) (Where statutory language “is clear and unambiguousour inquiry ends. Thereis no needfor judicial construction and a court may not indulgein it.”). Moreover, even if it were appropriate to examinelegislative intent, the relevant “intent” is the City Council’s intent in adoptingits GeneralPlan in March 2010, which clearly wasto replaceall pre-existing General Pian policies in their entirety. See supra I.C. 28 In contrast, there is absolutely no evidencethat the City Council in 2010 intended to reject the Open Space designation for the Property shownonthe existing General Plan land use map. In fact, at that time, Milan’s request for a GPA to change the existing Property designation (in the 1989 General Plan) from Open Spaceto residential had. been pending for three years. Had the City Council believed that the existing designation was erroneous, it could certainly have modified the designation as part of the comprehensive General Plan update. The City Council instead retained the Open Space designation unchangedfrom the 1989 General Plan, presumably anticipating that any proposed modification would be properly processed through Milan’s pending GPA. Despite ample opportunity, Milan,in turn, never challenged the 2010 designation for its Property as erroneous. Noris there the slightest evidence that the City Council in 2010 intended to incorporate the OPA Plan into the General Plan. To the contrary, the General Plan on its face repeatedly refers to the OPA Plan as a subordinate “specific” or “neighborhood plan.” Exhibit B at 2-3, 6. The 2010 General Plan itself was presented to the public and decisionmakers as a 606-page documentthat did not incorporate the OPA Plan, but wasself- contained and comprehensive. Exhibit B at 1-2. This documentalone was the “2010 General Plan”distributed to the public and placed onthe City’s website. See § 65357(b) (requiring that “[c]opies of the documents 29 adopting or amending the general plan” be promptly “made available to the general public”). In contrast, the “Orange Park Acres Plan” waslisted on the City’s website not under the heading of “General Plan,” but rather underthe heading of other “Plans and Documents”along with other | specific plans, design guidelines, and similar documents. AR-14:6483-92. The City Council likewise identified the OPA Plan as a “Specific Plan”in the CEQA documentsit certified for the 2010 General Plan. AR-14:6230, 6297. In determining the “intent” ofthe City Council, the Court of Appeal completely ignores theseindices oflegislative intent. Instead,it focuses on the City’s resolutions approving Milan’s developmentproposal the following year. The Opinion finds “particularly relevant” the City’s findings approving the revised EIR for Milan’s Project, which set forth Milan’s theory that the OPA Plan remainedpart ofthe current General Plan pursuantto the 1973 resolution. Opinion at 21-22. The Court ofAppeal’s deference to the City’s belated findings, however, is unwarranted. “The declaration of a later Legislature is oflittle weight in determining the relevant intent of the Legislature that enacted the law,” and “[t]his is especially true when, . . . such declared intent is without objective support in either the languageor history ofthe legislation and (until recently) is contrary as well to the practice ofthe 30 affected agency.” Peralta Cmty. Coll. Dist. v. Fair Emp’t & Hous Comm ’n 52 Cal.3d 40, 52 (1990). | Here, the City’s 2011 conclusion that the OPA Planis “part of” the 2010 General Plan not only lacks “objective support,” it is contrary to numerous City resolutions and planning documents from 2000 onward whichconsistently refer to the OPA Plan as a “Specific Plan.” It is also inconsistent with the City’s multi-year processing of Milan’s request for a GPA and OPA “Specific Plan” amendment. Moreover,this is not a typical “consistency” case, where the City Council wasrequired to interpret ambiguous language or weigh and balance conflicting General Plan policies. Rather, the inquiry here is what constitutes the City’s general plan, which is a “question of law requiring an independent determination by the reviewing court.” Harroman, 235 Cal.App.3d at 392. The City’s asserted findingsreflect a /egal theory concocted by Milan’s lawyers, endorsed by the City Attorney, and then presented to the staff, the Planning Commission and the City Councilas a > While earlier resolutions had inconsistently referred to the OPA Plan’sstatus (see Opinion at 16), the City Council adoptedat least five resolutions from 2000 to 2008 referencing the OPA “Specific Plan.” See AR-9:3930, 9:3939, 9:3945; AR-14:6034; Appellants’ Supplemental RJN (“SRJN”) 007-9 (filed 01/30/13) (resolution requiring developers “within the OPA Specific Plan area” to give written notice of “[p]roposed specific plan amendments”). 3] legalfait accompli.° Sucha theory is not entitled to any deference. California Trout, Inc. v. State Water Res, Control Bd. 207 Cal.App.3d 585, 607 (1989) (Where an agency “has merely adhered to a view of the general law advanced by counsel,” deference is unwarranted;“the court, rather than the staff counsel for an agency,is the superiorarbiter.”’). Critically, moreover, even after accepting Milan’s legal theory, the City Council recognized thatit did not go far enough. The Council properly concluded that a general plan amendmentwasstill necessary to eliminate the open space designations that conflicted with the allegedly valid residential designation; that is the whole reason forthe GPA. | Thus, in approving Milan’s Project, the Council did not find that it was consistent with the existing General Plan but only with the “General Plan, as amended by General Plan Amendment 2007-0001.” AR- 4:1828, § II (emphasis added), 1834 § III(A) (same). If any ofthe City’s findings related to the Project are entitled to deference,it is this determination that the Project could not procéed without amendmentsto both the General Plan and the OPA Plan. ° See AR-2:504; AR-12:5110, 5123, 5302, 5315; AR-13:5405. 32 Only after OCFPR submitted the Referendum did the City adoptits litigation position that the Project could proceed without the GPA under the pre-existing General Plan. This post-hoc “interpretation”of its General Plan is entirely unwarranted and deserves no deferenceat all. See County ofSutter v. Board ofAdmin., 15 Cal.App.3d 1288, 1295 (1989) (agency “litigation position” based on “the legal reasoning of staff counsel” not entitled to deference). Il. THE COURT OF APPEAL ERRED IN HOLDING THAT THE PROJECT COULD PROCEED DESPITE INTERNALLY INCONSISTENT GENERAL PLAN DESIGNATIONS FOR THE PROPERTY. State law requires that the general plan must comprise an’ “4nternally consistent” statement ofpolicies. § 65300.5. A general plan “must be reasonably consistent and integrated on itsface” because otherwise “those subject to the plan cannottell what it says should happen or not happen.” Kings Cnty. Farm Bureau v. City ofHanford, 221 Cal.App.3d 692, 744 (1990) (emphasis added) (citations omitted). Of course, OCFPR has always maintained the current General Plan is internally consistent because it designates the Property exclusively for Open Space. The Court ofAppeal, however, concluded differently. It held, as a matter of law, that the City’s current “General Plan”is not the document formally adopted by the City Council in 2010, but an entirely different conglomeration of documents, comprised ofthe official 2010 33 General Plan, the 1973 OPA Plan, and the never-implementedprovisions of a 1973 City resolution. Assuming, arguendo,that this conclusionis correct, this “General Plan” currently has twostarkly inconsistent land use designations for Milan’s Property: (1) the Open Space designations in the 2010 Land Use and Open Space mapsand the OPA Plan, which forbid residential development; and (2) the 1973 residential designation, which permits it. Opinion at 40. | Where a generalplan is internally inconsistent, subordinate land use decisions that are implicated by the inconsistency are ultra vires and void. In Sierra Club, the seminal case on this point, the court held that a general plan was “internally inconsistent” whereits land use and open space mapshad conflicting designations for a site 126 Cal.App.3d at 701- 04. Because the challenged zone changein that case “could not be consistent with such [a] plan (§ 65860),” it was “invalid when passed.” Jd. at 704. The sameis true here. Given the conflicting residential and open space designationsin the City’s “General Plan,” as construed by the Court ofAppeal, the development approvals for Milan’s property were “invalid when passed,” and the Zone Change and Development Agreement adopted by the City Council are thus void. | The Court of Appeal attempts to distinguish Sierra Club, proposing a newly-minted distinction between “substantive” and 34 “erroneous” general plan inconsistencies and dismissing the General Plan’s long-standing Open Space designation as an “error of omission.” Opinion at 42, 39. This distinction renders the requirement for internal consistency meaningless. Indeed, any time a general plan contains conflicting designations, one of the designations is necessarily “erroneous.” In Sierra Club, for instance, the county attempted to preemptively cure the inconsistenciesin its general plan mapsby adopting a “precedenceclause,” which declared that the land use designations “should take precedenceuntil the open space and conservation [element] can bereevaluated and amended,ifnecessary.” 126 Cal.App.3d at 703. Essentially, the county declared that the open space designations were “erroneous” and the land use map contained the correct and applicable designations. The Sierra Club court, however, struck down the precedence clause, holding that a county cannot simply “subordinate” one element of its plan to another. Id. at 704, 708. If a public agency cannot subordinate one elementofits general plan to another, certainly a court cannot do so. By definition, an internally inconsistent general plan can be remediedonly through a legislative (not a judicial) action amending the general plan. See § 65754; Sierra Club, 126 Cal.App.3d at 707. Thus, in Concerned Citizens, the court concluded that where two general plan elements were inconsistent a generalplan amendment was necessary to resolve this inconsistency. 166 35 Cal.App.3d at 104. Moreover, it was role of the legislative body, notthe court, to choose which element to amend: The Board maywishto establish correlation and consistency by amendingthe land use element, the circulation element, or both. . . [IJn order to maximize the Board’s range of choices weshall invalidate the Board’s adoption of both land use andcirculation elements. The Board can then choose whether to amend either element, or both, to achieve statutorily required correlation and consistency. Id. Similarly, here, it was the role of the City Council and the voters, not the Court, to resolve any General Plan inconsistencies. That the Council’s attempt to do so—by eliminating the Open Space designations for the Property to permit Milan’s development—was “nullified via referendum” (Opinion at 41), does not permit the Court to resolve the inconsistenciesitself. The voters, of course, had every right to reject the Council’s action. It is well established that general plan amendmentsare subject to referendum andthat the “normal referendum procedure”applies as long as the “local governmenthas discretion to choose what action to take.” Yostv. Thomas, 36 Cal.3d 561, 570, 572-74 (1984). As this Court has recognized, “the local electorate’s right to initiative and referendum . . is generally co- _ extensive with the legislative powerofthe local governing body.” De Vita, 9 Cal.4th at 775. Indeed, the constitutionally reserved powersofinitiative 36 and referendum are “greater than that of the [legislative body],” giving the people “the final legislative word.” Rossi, 9 Cal.4th at 704. | The voters here exercisedtheir right to have “the final legislative word” by upholding the Open Space designation in the 2010 GeneralPlan andrejecting the City’s Council’s attempt to resolve any General Plan inconsistency in favor ofMilan. The Court of Appeal’s determination that Milan’s developmentcan nevertheless proceed “improperly annul[s}”the right of referendum, undercutting “‘one of the mostpreciousrights of our democratic process.’” Jd. at 695(citation omitted). Indeed, rather than upholding the voters’ right ofreferendum, the Court ofAppealeffectively implements its own “amendment”ofthe Genera]Plan, one that is subject neither to referendum norto the requirements of public participation and transparency. See DeVita, 9 Cal.4th at 773-74 (describing these requirements). In its gratuitous rewriting of the City’s General Plan, the Court ofAppeal ignores this Court’s admonishmentthatthe judicialrole is to “construe, not to amend”a legislative enactment: ““the office of the judge is simply to ascertain and declare whatis . . . contained therein, not to insert what has been omitted or omit whathasbeeninserted.’” California Fed. Sav. & Loan Ass’n v. City ofL.A., 11 Cal.4th 342, 349 (1995) (citation omitted). Here, by “inserting” 37 a residential designation into the General Plan and effectively eliminating the conflicting Open Space designations, the Court ofAppeal does just that. While the Court ofAppeal purports to base its new construction of the General Plan on the City Council’s 2011 findings,in fact it goes muchfurther. The findings never suggest that the open space designations in the 2010 General Plan (and the OPA Plan) can be ignored. Nor could they. Rather, they recognize that a General Plan Amendmentto changethese designations to residential is necessary to “make the General Plan land use designations for the subject property consistent throughout the General Plan.” AR-4:1948. The Court ofAppeal, in contrast, declares that the Open Space designationsare not just “inconsistent,” but are legally invalid. The Opinion thus accomplishes precisely what the voters acted to prevent the City Council from doing: it rewrites the General Plan to eliminate the Open Space designation for Milan’s Property. In so doing, the Opinion robsthe City’s voters of their successful Referendum and undertakesprecisely the type of a general plan amendment by “judicial fiat” that this Court denounced in Lesher. 38 CONCLUSION - The petition for review should be granted. DATED: August 19, 2013 SHUTE, MIHALY & WEINBERGER LLP myh>CY ROBERTS. PERLMUTTER SUSANNAH T. FRENCH Attorneys for Petitioners Orange Citizens for Parks and Recreation and Orange Park Association 39 CERTIFICATE OF WORD COUNT I certify that this petition contains 8,391, exclusive of this certificate and the tables of contents and authorities, according to the word count function ofthe word processing program used to producethe petition. The numberofwordsin this petition complies with the requirements of Rule 8.504(d)(1) of the California Rules of Court. DATED: August 19, 2013 SHUTE, MIHALY & WEINBERGER LLP By: RASS YU ROBERTS.PERLMUTTER 496925.9 PROOF OF SERVICE Orange Citizensfor Parks and Recreation,et al. v. Milan Rei IVLLC,etal. California Court ofAppeal, Fourth Appellate District, Division 3, Case No. G047219 Orange County Superior Court, Central Judicial District, Case No. 30-2011-00494437 . Atthe time ofservice, I was over 18 years of age and not a party to this action. I am employed in the City and County of San Francisco, State of California. My business address is 396 Hayes Street, San Francisco, CA 94102. On August 19, 2013, I served true copies of the following document(s) described as: PETITION FOR REVIEW on the parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Shute, Mihaly & Weinberger LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 19, 2013, at San Francisco, California. od (ibis SeanP. Mulligan SERVICE LIST Orange Citizens for Parks and Recreation,et al. v. Milan Rei IV LLC, et al. California Court of Appeal, Fourth Appellate District, Division 3, No. G047219 . Orange County Superior Court, Central Judicial District, Case No. 30- 2011-00494437 © Steven Baric Baric & Tran 2603 Main Street, #1050 Irvine, CA 92614 Tel: 949-468-1047 Fax: 949-251-1886 Email: sbaric@barictran.com sbaric@bamlawyers.com Attorneys for Respondent Milan Rei IV, LLC David E. Watson Heather U. Guerena Duane Morris LLP 750 B Street, #2900 San Diego, CA 92101 Tel: 619-744-2200 Fax: 619-744-2201 Email: dewatson@duanemorris.com huguerena@duanemorris.com Attorneys for Respondent Milan Rei lV, LLC Colin L. Pearce Duane Morris LLP One Market Plaza, Spear Tower, #2200 San Francisco, CA 94105-1127 Tel: 415-957-3015 | Fax: 415-704-3098 Email: clpearce@duanemorris.com Attorneys for Respondent Milan Rei IV, LLC Wayne W. Winthers, Interim City Attorney City of Orange 300 E. Chapman Avenue Orange, CA 92866 Tel: 714-744-5580 Fax: 714-538-7157 Email: wwinthers@cityoforange.org Attorneys for Respondents Mary E. Murphy, City Clerk of the City of Orange; City of Orange; City Council of the City ofOrange Leon Page Senior Deputy County Counsel Office of Orange County Counsel 333 W. Santa AnaBI., #407 Santa Ana, CA 92702 Tel: 714-834-6298 / Fax: 714-834- 2359 Email: leon.page@coco.ocgov.com Attorneys for Respondent Neal Kelley, Registrar of Votersfor the County ofOrange Clerk ofthe Court Orange County Superior Court Central Justice Center 700 Civic Center Drive West Santa Ana, CA 92701 David A. DeBerry Woodruff, Spradlin & Smart 555 Anton B1., #1200 Costa Mesa, CA 92626 Tel: (714) 558-7000 Fax: (714) 835-7787 Email: ddeberry@wss-law.com Attorneys for Respondents Mary E. Murphy, City Clerk of the City of Orange; City of Orange; City Council of the City ofOrange Clerk of the Court California Court of Appeal Fourth District, Division Three 601 W. Santa Ana Blvd. Santa Ana, CA 92701 Filed 7/10/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE ORANGECITIZENS FOR PARKS AND RECREATIONetal., Petitioners, Vv. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; MILAN REIIV LLCetal., Real Parties in Interest. ORANGECITIZENS FOR PARKS AND RECREATIONetal., Plaintiffs and Appellants, Vv. MILAN REI IV LLCetal., Defendants and Respondents. G047013 G047219 (Super. Ct. No. 30-2011-00494437) OPINION Original proceedings; petition for a writ ofmandate to challenge an order of the Superior Court of Orange County, Robert Moss, Judge. Petition denied. Appeal from ajudgmentofthe Superior Court of Orange County, Robert Moss, Judge. Affirmed in part, reversed in part, and remanded. | Shute, Mihaly & Weinberger, Rachel B. Hooper, Robert S. Perlmutter, Susannah T. French; and Daniel P. Selmi for Petitioners, Plaintiffs, and Appellants OrangeCitizens for Parks and Recreation and Orange Park Acres. | Woodruff, Spradlin & Smart and DavidA. DeBerry for Real Parties in Interest, Defendants, and Respondents Mary Murphy, City Clerk of the City of Orange, the City of Orange City Council, and City of Orange. Duane Morris, Colin L. Pearce, David E. Watson, and Heather U. Guerena for Real Party in Interest, Defendant and Respondent Milan REI IV, LLC. | NicholasS. Chrisos, County Counsel and Leon J. Page, Deputy County ~ Counselfor Real Party in Interest, Defendant, and Respondent Neal Kelley, Orange County Registrar of Voters. Milan REI IV, LLC (Milan) is the current owner of 51 acres of land (the Property) in the Orange Park Acres neighborhoodofthe City of Orange(the City). Between 1968 and 2006,the Property featured a nine-hole golf course and other recreationalfacilities. In 2007, Milan appliedto the City to developa residential subdivision on the golf course portion of the Property. Dubbed “Ridgeline Equestrian Estates,” the proposed developmentconsists of 39 homes, each built on a one-acrelot, plus various equestrian amenities (the Proj ect). The City of Orange City Council (the City Council) ultimately approved the Project in 2011. In connection therewith, the City Council adopted a resolution 2 amending the City’s general plan (General Plan Amendment). Among other things, the General Plan Amendment changed the existing designation of the Property on the general plan land use policy map (Policy Map) from “Open Space”to “Other Open Space & Low Density.” In response to petitioning activity by its citizens, the City held a referendum on the General Plan Amendment.’ On November 6, 2012, participating voters defeated Measure FF,thereby nullifying the General Plan Amendment. Thepetitioners, plaintiffs and appellants, whom weshall refer to collectively as Orange Citizens, assert that the referendum essentially undid the City Council’s approval of the Project. Orange Citizens’ argumentis straightforward: (1) a municipality’s general plan must be consistent with any proposed development; (2) the City’s general plan in 2010 wasinconsistent with the Project, as reflected by the Policy Mapdesignationofthe Property(“Open Space”); (3) an amendment of the City’s general plan was a necessary prerequisite for approval of the Project; and (4) the General Plan Amendment, which wasthe City Council’s attempt to satisfy this necessary condition, failed at the ballot box. (See Midway Orchards v. County ofButte (1990) 220 Cal.-App.3d 765, 783 [development agreement voided because project approval was inconsistent with generalplan as it existed before a general plan amendment, which was made ineffective by referendum].) 1 : . . .“The referendum is the means by whichthe electorate is entitled, as a powerreserved byit underour state Constitution, to approve or reject measures passed by a legislative body.” (Empire Waste Managementv. Town of Windsor (1998) 67 Cal.App.4th 714, 717.) Amendmentsto generalplansare legislative acts subject to referendum. (Yost v. Thomas (1984) 36 Cal.3d 561, 570.) ; Petitioners, plaintiffs and appellants include Orange Citizens for Parks and Recreation,a political action committee formed to protect the City’s open space, and — Orange Park Association, an incorporatedassociation ofcitizens formed to protect the rural character of Orange Park Acres. Milan, the City, and the City Council contendthat the City’s general plan since 1973 has always beento allow low density residential development onthe Property. Asrepeatedly found by the City Council in connection with its approvalof the Project, the City’s general plan was already consistent with low-density residential units being constructed on the Property, even without the General Plan Amendmentand notwithstanding the “Open Space”designation on the Policy Map. The General Plan Amendmentsimply correctederrors on the Policy Map(and in other documents). Regardless of whethertheseerrors werecorrected, the Project was consistent with the City’s general plan. Thetrial court agreed with this position. _ Because we conclude the City Council acted reasonably in making its consistency findings, weaffirm thetrial court’s judgmentwith regard to denying Orange Citizens’ petition for writ of mandateto set aside certain acts ofthe City Council (i.e., entering into a development agreement with Milan and changing the Property’s zoning classification). Wereverse the judgment with regard to the issuance of a writ ofmandate commanding the City to removethe referendum from the ballot, a portion of the judgmentalready mooted by our previousstayofthe trial court’s writ of mandate. - GENERAL PRINCIPLES OF LOCAL PLANNING LAW Before reciting the relevant facts and procedural history, we begin with an outline of the basic structure of local planning law. This divergence from our usual practice helpsto illustrate the significance of the history of the City’s planning efforts in Orange Park Acres. The Planning and Zoning Law (Gov. Code, § 65000 et seq.) channels and limits local governments’ exercise ofthe police powerunderarticle XL, section 7 of the 3 .All statutory referencesare to the Government Codeunless otherwise stated. California Constitution. (See Fonseca v. City ofGilroy (2007) 148 Cal.App.4th 1174, 1181-1182.) City councils and county boards of supervisors(i.e., local “legislative bod[ies]”) possess a “planning agency with the powers necessary to carry out the purposes”ofthe Planning and Zoning Law. (§ 65100; see 1 Cal. Land UsePractice (Cont.Ed.Bar. 2010) Overview of Landuse Regulations, § 1.20, p. 19.) Each “legislative body . . . shall by ordinanceassign the functionsofthe planning agencyto a planning department, one or more planning commissions, administrative bodies or hearing officers, the legislative bodyitself, or any combination thereof, as it deems appropriate and necessary.” (§ 65100.) In the case before us, the relevant legislative body is the City Council, which apparently assigned someofits planning agency powers to the City of Orange Planning Commission (Planning Commission). Putting to one side the question offederal or state preemption of local planning authority, the hierarchyof local land use regulation is structured from top to bottom to include: (1) the general plan; (2) any specific plan(s); (3) the zoning code; (4) specific relief from the zoning code — e.g., conditional use permits or variances;(5) subdivision maps; and (6) building permits. (1 Land Use Practice, supra, Overview of Jand use Regulation, § 1.12, p. 14.) General Plans “Each planning agencyshall prepare andthelegislative body of each county and city shall adopt a comprehensive, long-term general plan for the physical developmentofthe county orcity, and of any land outside its boundaries which in the planning agency’s judgmentbearsrelation toits planning.” (§ 65300; see Lesher Communications, Inc. v. City ofWalnut Creek (1990) 52 Cal.3d 531, 535 (Lesher) [“The Planning and Zoning Law .. . [citation] mandates the adoption of a general plan by every city and every countyin this state”], fn. omitted.) The general plan adopted by a oe eeelegislative body is “a “constitution” for future development’ [citation] located at the top 5 of ‘the hierarchy of local government law regulating land use’ [citation].” (DeVita v. County ofNapa (1995) 9 Cal.4th 763, 773 (DeVita).) “The planninglaw. . compels cities and counties to undergothe discipline of drafting a master plan to guide future local land use decisions.” (Ibid.) “The generalplan shall consist of a statement of developmentpolicies and shall include a diagram or diagramsandtext setting forth objectives, principles, standards, and plan proposals.” (§ 65302.) “The plan mustinclude seven elements — land use, circulation, conservation, housing, noise, safety and open space — and address each of these elements in whateverlevel of detail local conditions require [citation].” (DeVita, supra, 9 Cal.4th at p. 773 .) The land use element “designates the proposed general distribution and general location and extent of the uses of the land for housing, business, industry, open space, including agriculture, natural resources, recreation, and enjoymentof scenic beauty, education, public buildings and grounds, solid and liquid waste disposalfacilities, and other categories ofpublic andprivate uses of land.” | (§ 65302, subd. (a).) The open space elementrequires a “local open-spaceplan for the comprehensive and long-range preservation and conservation of open-space land within its jurisdiction.” (§ 65563.) “‘Open-space land’ is any parcel or area of land or water that is essentially unimproved and devoted to an open-spaceuseas definedin this section, and that is designated on a local, regional or state open-spaceplan as any ofthe following: [{] (1) Open space for the preservation of natural resources... . If] (2) Open space for the managed production of resources... . [{] (3) Open space for outdoorrecreation ....” (§ 65560, subd. (b).) “The general plan may be adopted in any format deemed appropriate or convenientbythelegislative body, including the combining of elements.” (§ 65301, subd. (a).) “The general plan may be adoptedas a single documentor as a group of documents relating to subjects or geographic segments of the planning area.” (/d., subd. (b).) “[T]he Legislature intends that the general plan and elements and parts 6 thereof comprise an integrated, internally consistent and compatible statementofpolicies for the adopting agency.” (§ 65300.5.) “If it deemsit to be in the public interest, the legislative body may amend all or part of an adopted general plan.” (§ 65358, subd. (a); see Lesher, supra, 52 Cal.3d at pp. 538-539 [describing procedural requirements of adoption or amendment of general plan].) Whethera city or county is adopting a new general plan or amending an existing general plan, it must conduct public hearings (§§ 65351, 65355) and “refer the proposedaction to” certain interested public entities (§ 65352, subd. (a)). “The planning commission shall make a written recommendation on the adoption or amendment of a general plan.” (§ 65354.) “The legislative body shall adopt or amenda general plan by resolution, which resolution shall be adopted bythe affirmative vote ofnot less than a majority ofthetotal membership ofthe legislative body.” (§ 65356.) “Copies of the documents adopting or amending the generalplan, including the diagrams and text, shall be madeavailableto the general public”to inspector to keep for a reasonablefee. (§ 65357, subd. (b)(1)(2).) Specific Plans “After the legislative body has adopted a generalplan, the planning agency may,orif so directed bythelegislative body, shall, prepare specific plans for the systematic implementation of the generalplan for all or part of the area covered by the general plan.” (§ 65450.) “A specific plan shall be prepared, adopted, and amendedin the same manneras a general plan, exceptthat a specific plan may be adopted by resolution or by ordinance and may be amendedas often as deemed necessary by the legislative body.” (§ 65453, subd. (a).) Specific plans include manyofthe same features as general plans. (§ 65451, subd. (a).) “The specific plan shall include a statementofthe relationship of the specific plan to the general plan.” (/d., subd. (b).) “No specific plan may be adopted 7 or amended unless the proposed planor amendmentis consistent with the general plan.” (§ 65454.) “Anyspecific plan or‘other plan ofthe city or county thatis applicable to the Sameareas or matters affected by a general plan amendmentshall be reviewed and amendedas necessary to makethe specific or other plan consistent with the general plan.” (§ 65359.) Zoning Law “Thelegislative body of anycounty or city may . .. adopt ordinances that do any of the following: [] (a) Regulate the use of buildings, structures, and land as between industry, business, residences, open space, includingagriculture, recreation, enjoyment of scenic beauty, use of natural resources, and other purposes.” (§ 65850.) “For such purposesthelegislative body may divide a county,a city, or portions thereof, into zonesofthe number, shapeandareait deemsbest suited to carry out the purpose of” the zoning law. (§ 65851.) “All such regulations shall be uniform for each. . . use of land throughout each zone, but the regulation in one type of zone maydiffer from those in othertypes of zones.” (§ 65852.) “County orcity zoning ordinances shall be consistent with the general plan....” (§ 65860, subd.(a).) “A zoning ordinancethatis inconsistent with the generalplan is invalid when passed [citations] and one that was originally consistent but has becomeinconsistent must be brought into conformity with the general plan. [Citation.] The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. Thetail does not wag the dog. The general plan is the charter to which the ordinance must conform.” (Lesher, supra, 52 Cal.3d at p. 541.) Approval ofDevelopment Projects eee_ “(T]he propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable generalplan andits elements.” (Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 570.) “The consistency doctrine has been describedas ‘the linchpin of California’s land use and developmentlaws;it is the principle which infuse[s] the concept of planned growth with the force of law.”” (Corona-Norco Unified School Dist. v. City ofCorona (1993) 17 Cal.App.4th 985, 994.) “A project is consistent with the general plan “if, consideringall its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment.””” “A given project need not be in perfect conformity with each and every general plan policy. [Citation.] To be consistent, a subdivision development must be ‘compatible with’ the objectives, policies, general land uses and programsspecified in the general plan.” (Families Unafraid to Uphold Rural etc. County v. Board ofSupervisors (1998) 62 Cal.App.4th 1332, 1336.) “A development agreementshall not be approvedunlessthelegislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.” (§ 65867.5, subd. (b).) “No local agencyshall approve a tentative map . . . unless the legislative body finds thatthe proposed subdivision, together with the provisions for its design and improvement, is consistent with the generalplan... . or any specific plan... .”(§ 66473.5.) FACTS Orange Park Acres is a neighborhood in Orange County with a semi-rural character, exemplified by large lot sizes and equestrian activities. Portions of Orange Park Acres are located within the City, while the remainderis unincorporated land within the jurisdiction of the County of Orange. The Project is sited at the Property (51.1 acres located within Orange Park Acres that once featured a golf course, tennis courts, and a clubhouse). In addition to 39 acres ofresidences, the Project provides for a 2.3 acre equestrian arena and new equestrian trails. Since 1985, the entire Property has beenpart of the City. But the City exercised its planning authority over the Property even earlier, as the Property fell within the City’s “sphere of influence.” (See Merritt v. City ofPleasanton (2001) 89 Cal.App.4th 1032, 1034; §§ 65300, 65859, subd. (a).) The question presented in this case appears deceptively simple: Is the developmentof low-density residential estates on the Property consistent with the City’s general plan? Buta review of the voluminousadministrative record in this case reveals contradictions and ambiguities that call into question the possibility of definitively determining the land use designation of the Property in the generalplan. _ The City’s Adoption ofa Planfor Orange ParkAcres in 1973 On May 16, 1973, a development committee for Orange Park Acres was established to address controversies arising between stakeholdersin the community. The committee included members representing the City, the county, residents of Orange Park Acres, major landowners,andreal estate developers. The committee collected information, set objectives, and evaluated competingpolicies. The area under study included 594 acres within the City and 1127 acres within unincorporated Orange County. The tangible product of the committee’s work was a September 1973 documententitled “Orange Park Acres Specific Plan.”” After detailing information about Orange Park Acresthat had been gathered and discussing several alternative concept , Although the documentreferred toitself as a “specific plan,”there is no discussion within the documentas to whetherit was intendedto bea statutory “specific plan”under section 65450. 10 plans, the documentset forth a “Proposed Specific Plan.” The proposed plan listed goals, objectives, and policies to preserve and enhancethe community. The concept ofthe “Specific Plan” was to mix low-density, one acre residential lots with clusters of denser single-family housing. The “Orange Park Acres Specific Plan” also sought to preserve existing and establish new open space,includingtrails, parks,hillside slopes, and greenbelts. Asfor the Property, “The Plan advocates the permanentretention of the 34 acre golf course within Orange Park Acres. If the private ownership cannot sustain a [viable] economic return, public acquisition is suggested in order to preserve a substantial amenity for recreation and open space within the area.” “In addition to the golf course, there is a four acre Tennis Club and the seven acre . .. Country Club to be sustained with. the proposed Plan.” The “Orange Park Acres Land Use andCirculation Plan,” a map includedin the proposed plan, designated the Property as “Golf Course” (the golf course portion) and “Local Parks” (the remainderofthe Property) within the “Open Space & Recreation” category ofuses. On November 19, 1973, the Planning Commission held a public hearing to consider the adoption of the “Orange Park Acres Plan as a part of the land use element of the General Plan encompassinga portion of incorporated territory and unincorporated territory in the General Planning Area ofthe City... .” By Resolution No. PC-85-73, the Planning Commission recommendedthe adoption of the “Orange Park Acres Plan,” although the Planning Commission disapprovedofthecirculation element and added several amendments. In adoptingtheresolution, the Planning Commission foundthat “the Orange Park Acres Plan meets General Plan criteria set forth in Section 65302[, subdivision ](a) .... Sections 65352 and 65357 further authorize the Planning 5 . . . :It is worth noting that this language does not purport to require the permanentretention of the golf course or public acquisition ofthe Property, only to suggestit. 1] Commissionandlegislative body to adopt General Plan elements and amendmentsforall or a portionofa city and a surrounding planning area by resolution... .” The Planning Commission further resolved to directits staff“to prepare implémentation ordinances or resolutions . . . consistent with this resolution and the Orange Park Acres Plan.” Oneofthe Planning Commission’s proposed amendments wasto “Id]esignate the Golf Course as Other Open Space and Low Density (1 acre).” James A. Jackman, who was a memberofthe Orange Park Acres committee and the City Council at the time, providedinsight into the purpose of this amendmentat a May 2011 public hearing: “The concern of the committee at that time was really what happensifthe golf course no longeris the function of the golf course? What are weto do next? Andthe answer was we were worriedthat it would be developed as commercial which was inconsistent with the . . . large parcel of land right in the center of Orange Park Acres, right in the very heart of the areathat we were planning and wesaidit has to be the one- acre estates.” Jackman addedthat the 2011 City Council had “an opportunity to put in a developmentthat we[the 1973 City Council] would have, in my opinion, have approved in a heartbeathadit come before us back in 1973, had the golf course wanted to go out at that time.” On December 26, 1973, the City Council adopted Resolution No. 391 5, which resolved to uphold the recommendation ofthe Planning Commissionto adopt and approve the “General Plan for the Orange Park Acres area . . . as set forth in that certain plan... dated September 1973 and as amended by the Planning Commission on November19, 1973 . . . as a part of the land use element of the City .. . and that copies of this plan be maintained onfile . . . in orderthatthis plan maybereadily accessible to members of the public.” (Italics added.) Resolution No. 3915 did not explicitly set forth the text of the amendments added by the Planning Commission. Resolution No. 3915 made findings that the Orange Park Acres plan metthe requirements ofa general plan 12 under theGovernment Code and was tobe considered “part of the required land use elementto be included in a General Plan for the City... .” | In sum, as of December 1973, the Planning Commission and City Council hadresolved to include the amended Orange Park Acres plan aspart ofthe City’s general plan. The relevant amendment for our purposesis the designation of the golf course portion of the Property as “Other Open Space and Low Density(1 acre).” But the record does not include a copy of the Orange Park Acresplan or a general plan map from the 1970’s reflecting this amended designation of the Property. It may be, as speculated by the City in an environmental planning documentprepared in connection with the Project, that “the textual changes recommendedbythe Planning Commission and approved by the City Council were never entered into anyofficial copy ofthe” Orange Park Acres plan. Milan’s attorney acknowledged in a May 2011 letter to the City Council that the copy of the Orange Park Acres plan readily available to the public (at least in 201 1) “includes the City Council’s adopting resolution from 1973 whichreflects incorporation of the Planning Commission’s changes, but does not include the Planning Commission’s recommended changesto the text which were adopted by the City Council.” In other | words, the draft Orange Park Acres plan and resolution No. 3915 were presented in recent years to the public as the Orange Park Acres plan, but actual language designating the Property as “Other Open Space and Low Density (1 acre)” was not. Subsequent Planning Activities . In January 1977, the City Council resolved to delete the word“‘specific’ from the text of the Orange Park Acres Area Plan.” It is unclear from the record howthis resolution was (or was not) actually implemented with regard to copies ofthe Orange Park Acres plan from 1977 to the present. In October 1977, the City Council resolved to changethe zoning classification for the clubhouse portion of the Property from its county zoning 13 designation,“County E4-1 zoning (Single Family Residence, one acre minimum lot size),” to “City R-O (Recreation-Open Space).” The resolution indicated this change was necessary”to permit use of the property as a clubhouse.” Accordingto the resolution, the “zone changeis consistent with the Orange Park Acres General Plan.” Apparently, the City and the ownerofthe clubhouse property had agreed that the City would annex the clubhouseportion of the Property. In September 1985 the City Council resolved to annex the “Ridgeline Country Club”portion of the Property at the requestof the property owner. Accordingto an analysis prepared by the County of Orange Local Agency Formation Commission, “[a] portion of the country club is already within the city limits of Orange, and the landownerdesiresto haveall the property underonejurisdiction to provide uniform developmentstandardsto all the property.” The applicationitself, in response to a question aboutthe general plan land use designations,stated that the County of Orange designation was “Residential” while the City designation was “Recreation/Open Space.” Theapplication stated that the current and proposedusefor the land wasa golf course and tennis club, and that the proposed zoning was R-O (Recreation-Open Space). The Local Agency Formation Commissionletter stated: “The subject territory is developed with a golf course andtennis club. There are noresidents onsite. Current zoning on the site is County E4-1 (Small Estates). The landownerhas filed an application with the City of Orangeto re-zone the property R-O (Recreation Open Space) whichis consistent with the existing use and the city’s General Plan for the site. [{] The site is surrounded by single family residences.” In October 1985, the City Council resolved to reclassify the entirety of the Property’s zoning to R-O (Recreation-Open Space). Prior to the City’sannexation and rezoning of the Property, multiple parcels on the Property had inconsistent zoning designations. This resolution also indicated the following facts had been established: “The configuration of the proposed parcels wouldincrease the potential for development 14 to other than recreation oriented uses, butit is noted that, at a minimum, a General Plan Amendment and Zone Change wouldbe required to allow other uses.” (Italics added.) In © notingthis alleged fact, the resolution is at odds with the notion that the general plan in effect designated the Property “Other Open Space and Low Density (1 acre).” In July 1989, the City Council resolved to amendthe Orange Park Acres plan. This resolution did not pertain to the Property, but included a finding offact relevantto the dispute before us: “That although the Orange Park Acres Plan labels itself as a ‘specific plan’, it does not contain the levelofdetail required of a Specific Plan understate law .... Therefore dueto its contents, and the mannerin which it was adopted, the [Orange Park Acres] Plan has the authority of a General Plan, rather than a Specific Plan.” 1989 General Plan The City Council adopted by resolution a new generalplan in August 1989. In the introduction to this general plan, it was noted that the City’s existing general plan was “outdated”andthat a new general plan was required“to bring the Plan up to date and to establish definitive land use and developmentpolicy to guide the City into the next century.” The 1989 general plan stated thatits “Land Use Element and the Land Use Policy Mapare the most important components of the General Plan.” “Through the use of text and diagrams, the Land Use Elementestablishes clear and logical patterns of land use as well as standards for new development. The single most important feature of this element is the Land Use Policy Map. This map, a copy of which is contained in the back pocket of the GeneralPlan, indicates the location, density and intensity of development for all land uses city-wide.” The 1989 general plan’s Policy Map included an “OS GOLF”(i-e., open space, golf) notation on the Property. 15 The 1989 general plan also referenced “other plans and programs that need to be considered in the formulation, adoption and implementation of land use policy.” These other plans included“[t]wo additional land use plans. . . for the unincorporated _ areas located in the eastern portion of the City. The Orange Park Acres plan was prepared in 1973. This plan outlines landusepolicy for the semi-rural Orange Park Acres area... .” The Orange Park Acresplan was classified as an “Area Plan.” The 1989 general plan clearly does not deem the Orange Park Acres plan to be a “specific plan,” butit also does not explicitly reaffirm that the Orange Park Acres plan remains a part of the City’s general plan. A mere eight monthslater, the City Council (in a resolution amending the Orange Park Acres plan) stated that the Orange Park Acres plan “is part of the Land Use Elementofthe City’s General Plan... .” Similarly, in July 1998, the City Council observed in a resolution approving a conditional use permitthat “the proposed project is consistent with the City’s General Plan and, more specifically, the Orange Park Acres Plan, which was adopted as part of the City’s General Plan... .” Butin September 2000, October 2003, and August 2008,the City Council adopted resolutions which referred to the “Orange Park Acres Specific Plan.” The October 2003 resolution wasbilled as a generalplan amendmentto, in part, removecertain land from the scope of the Orange Park Acres Specific Plan. By wayofreview, there was a certain amountof ambiguity in the land use classification of the Property from the inception of the Orange Park Acres plan in 1973. The proposal provided for an open space designation. Upon recommendationofthe Planning Commission, the City Council adopted an amended Orange Park Acres plan by resolution. But the amendmentdesignating the Property as Open Space or low-density residential was (perhaps) neverreflected in the mapsor text associated with the Orange Park Acresplan, but (perhaps) only ever appeared in the Planning Commission resolution 16 (Resolution No. PC-85-73) referenced by the City Council in its own Resolution No. 3915 adopting the Orange Park Acres plan as amended. Until the Project and the controversy surrounding it, apparently no explicit attempt was ever made by the City Council to clear up the ambiguity in its planning documents. Indeed, matters only grew more confused. The zoning changesto the Property as part of its annexationin the late 1970’s and 1980’s reflected only the open space componentofthe dual open space/low density residential designation ofthe Property by the City Council in 1973. Was this simply a reflection of the current owner’s use or did these zoning designationsreflect a belief on the part of the City Councilthat | open space wasthe only use consistent with the then-existing general plan? The updated 1989 generalplan did notexplicitly reference the Orange Park Acres plan as a.continuing part of the general plan. Some subsequent City Council resolutions stated that the Orange Park Acres plan wasstill part of the general plan, but other resolutions refer to - the Orange Park Acres Specific Plan. And even assuming the Orange Park Acres plan was still part of the general plan, the 1989 Policy Map explicitly classified the Property as OS (Open Space)/Golf. To the extent the pre-1989 general plan allowed low-density single family residential development, did the 1989 generalplan (andin particular the Policy Map) amendthegeneral plan to limit the Property to open space uses? 2010 General Plan In March 2010, the City adopted yet another general plan. The 2010 generalplan applied to all of Orange andits eastern sphere of influence,including Orange Park Acres. In an introductory section, the 2010 general plan observed with regard to Orange Park Acresthat “most of the area was annexed by the City .. . during the 1990s.” The 2010 Policy Map designated the Property as “OS” (Open Space). “Open Space” wasdefined elsewhere in the 2010 General Plan to refer to “[s]teep hillsides, creeks, or environmentally sensitive areas that should not be developed.” 17 The 2010 general plan listed “Orange Park Acres”as oneofthe “Specific Plans and NeighborhoodPlans”that were “currently in effect.” In contrast, the Orange Park Acres plan is not listed amongthe “[a]dopted Specific Plans and Neighborhood Plans”in another section ofthe document. Instead, the text states “[e]arlier planning efforts that have influenced the growth and change within Orangeinclude the .. . Orange Park Acres developmentplan.” In an implemeritation index, however, the 2010 General Plan states it should “[c]ontinue to implementand update, as needed,” the Orange Park Acres Plan and other specific plans and neighborhoodplans. Milan’s Application to Develop the Project In 2007, Milan submitted an application to the City to develop the Project at the Property. The application requested “[t]he approval of a General Plan Amendment, Development agreement, Change ofZone; Specific Plan Amendment, Tentative Tract Map,Parcel Map, Master Site Plan, and [California Environmental Quality Act] documents to allow the construction of”the Project. Aninitial study prepared pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000et seq.) stated that Milan requested a general plan amendmentto designate the Project site as “Estate Residential” on the Policy Map. Theinitial study also stated that Milan requested an amendmentto the “Orange Park Acres Specific Plan Map”to designate the Project site as “Low Density — One Acre Minimum.” Similarly, a 2009 draft environmental impact report prepared pursuantto CEQAdescribedandillustrated (by showing the existing and proposed general plan and | zoning designations on mapsofthe Property andits surrounding environs) the changesto the general plan and Orange Park Acres Specific Plan underconsideration. This documentstated that“[a]lthough the proposedproject is inconsistent with the existing City General Plan land use designation forthe projectsite, upon approval of a General Plan Amendmentit would bein substantial compliance with the Land Use Element Goals 18 and Policies. The proposed General Plan Amendment would amend the Land Use Element Mapto designate the proposedprojectsite as Estate Density Residential.” TheProject generated considerable controversy, based in part onits replacement of open recreational space with a private residential subdivision. Sometime in 2009, Milan’s counsel presented the City’s attorney, David DeBerry (City Attorney), with the 1973 resolutions described above (i.e., Planning Commission Resolution No. PC-85-73 and City Council Resolution No. 3915). In response, the City Attorney conducteda full review ofthe City’s planning history pertaining to the Property. On December22, 2009, based onhis review,the City Attorney transmitted a letter to interested parties with two findings: (1) “The [Orange Park Acres] Plan is a part of the land use elementof the City”; and (2) “The [Orange Park Acres] Plan designates the golf course portion ofthe [Property] as ‘Other Open Space and Low Density (1 acre).’ As such,[the Project] would be consistent with the Plan’s designation ofthe [P]roperty, although somewhatinconsistent with other aspects of the Plan.” The City Attorney later speculated that the “best explanation”for the confusion and inconsistencies in the City’s planning history is “the action taken in 1973 was forgotten.” A June 2010 Planning Commission memorandum described the state of affairs as discerned by the City’s Planning Manager: “the [Orange Park Acres] map does not accurately depict the designation as ‘Other Open Space and Low Density (1 acre)’ as approved bythe City Council in 1973. Since the [Orange Park Acres] map was not updated after the City Council action, the City’s General Plan Land Use Mapreflects the [Orange Park Acres] Plan as it is shown currently. One ofthe proposedactions before the City is to formally amendthe [Orange Park Acres] Plan and GeneralPlan to ensure consistency with the proposed project.” Milan agreed with this analysis. Even after the discovery ofthis lost history, Milan proposed a general plan amendmentto “reflect the properland use 19 designation for the Projectsite, to remove incorrect descriptions of the [Orange Park Acres] Plan suchas ‘specific plan’ or ‘neighborhoodplan,’ and to properly reflect the [Orange Park Acres] Plan. If the General Plan is so amended,the Project will be entirely consistent with the General Plan and 100% approvable ....” OrangeCitizens, on the other hand, disagreed with the entire notion that the 1973 Orange Park Acres plan had anything to do with the City’s General Plan as it existed in 2007 through 2011. Project Approval Bya July 2010 resolution, the Planning Commission recommendedthat the City approvethe Project by certifying the final environmental impactreport, adoptingits findings of fact, adopting a statement of overriding considerations, approving a general plan amendment, and approving a zone changefor the Property. As to the general plan amendment, the Planning Commission notedit was recommendingthat the City Council deny Milan’s proposal to changethe land use designation of the Property in the general plan. Instead, the Planning Commission recommendedthat the City Council maintain the “existing land use designation of ‘other open space and low density (1 acre).’” On June 14, 2011, the City Council adopted a series ofresolutions amounting to its approvalofthe Project. Resolution No. 10566 adopted the General Plan Amendment. Thetitle of the resolution “AFFIRMS THE SITE’S EXISTING LAND USE DESIGNATION OF ‘OTHER OPEN SPACE AND LOW DENSITY (1 ACRE).’” Thefirst recital of the resolution again “affirmsthesite’s existing land use Designation of ‘Other Open Space and Low Density (1 acre).’” (Italics added.) Resolution No. 10566 furtherstates that the purpose of the General Plan Amendmentis to “clarify the original and unchanged termsofthe existing [Orange Park Acres] Plan” (italics added) and to “make the General Plan land use designations for the subject property consistent throughout the General Plan.” 20 The General Plan Amendmentitself, contained in an exhibit, revises the text and diagrams included within the City’s General Plan, including the Orange Park Acres Plan. A new mapestablishing the Property as “Other Open Space & Low Density (1 ac)” is attached as part of the exhibit. The language recommendingretention of the golf course was removedentirely from the Orange Park Acres plan. The land use and circulation plan mapin the Orange Park Acres plan was changed from a golf course and local park designation to a low-density, one acre minimum lot designation. The General Plan Amendmentalso allowed vinyl fencing (as opposed to only woodfencing) and updated landusestatistics detailed in the original Orange Park Acres plan. Resolution No. 10566 foundwith regard to the consistency of the Project with the City’s General Plan: “Upon approvalof the proposed amendmentsto the General Plan, the project is consistent with the goals andpolicies of the City’s General Plan that was approved by the City Council on March 9, 2010, including the [Orange Park Acres] Plan as ‘part of the required land use elementto be included ina General Plan for the City of Orange.’ . . . The existing Other Open Space and Low Density (1 acre) General Plan Designation is consistent with the project and the General Plan,as textually amended because the open spaceandresidential designation is consistent with residential one acre lots.” A second resolutioncertified the final environmental impactreport for the Project. Aspart of this resolution, the City Council adopted certain findings of fact. We list particularly relevantfindings. “[A]t the time ofthe adoption of the [Orange Park Acres] Plan, it was notthe intent of the City Council to prohibit residential development on the Property, but rather the very specific intent that one-acre residential lots be permitted on the Property.” “As adopted in 1973, the [Orange Park Acres] Plan specifically permitted low density residential uses on minimum one-acre lots on the Project site.” “The [Orange Park Acres] Plan was adopted by the City in 1973 as a part of the Land Use Elementofthe City’s General Plan. Although since its original 21 adoption, various City documents have incorrectly referred to the [Orange Park Acres} | Plan as a specific plan, community plan, and/or area plan, the official records of the City clearly establish that the [Orange Park Acres] Plan was adopted only as part of the Land Use Elementofthe General Plan. Thereis no evidencethat the City has ever adopted(as. opposedto incorrectly referenced) the [Orange Park Acres] Plan as anything other than part of the City’s General Plan.” “The Record indicates that, mostlikely through clerical oversight and contrary to the express terms of Resolution No. 391 5, the textual changes recommended by the Planning Commission and approved by the City Council were never entered into anyofficial copy of the [Orange Park Acres] Plan.” “In approving [General Plan Amendment] 2007-0001, it is the intent of the City Council to exerciseits legislative discretion to honorthe intent ofthe original adoption of the [Orange Park AcresPlan], remove any uncertainty pertaining to the permitted uses of the Property, and allow uses on the Property which the City Council believes to be appropriate.” “The City’s existing zoningclassification for the Property (RO) excludesresidential land use as a permitted use. Changingthe zoning ofthe Project Site from RO to R-1-40 is consistent with the 1973 [Orange Park Acres] Plan Land Use designationsandthe landuse designations adopted by the City Council’s approval of [General Plan Amendment] 2007-001. Therefore, the R-1-40 zoningis consistent with the City’s General Plan.” A third resolution approveda tentative tract mapfor the Project. This resolution found the tentative tract map to be “consistent with the City of Orange General Plan which includes the Orange Park Acres Plan as part of the Land Use Element... .” These June 14, 2011 resolutions were voted on by four of the five City Council members whoadopted the 2010 General Plan. On July 12, 2011, the City Council passed an ordinance changing the zoningclassification for the Property from “Recreation/Open Spaceto Residential 43,560 Square feet (R-1-40).” The City Council found this zone change was “consistent with and furthers the objectives and policies of the Orange Park Acres Plan, which is part of the _ 22 land use element of the General Plan, as amended by General Plan Amendment 2007- 0001 -++.” Also on July 12, 2011, the City Council passedan ordinance approving a development agreement with Milan, which was also deemedto be “consistent with the objectives, policies, general land uses, and programsspecified in . . . the General Plan, as © amended by General Plan Amendment 2007-0001, which General Plan includes the Orange Park Acres Plan as part ofits land use element.” Referendum . On July 12, 2011, Orange Citizens for Parks and Recreation submitted to the City Clerk a referendum of Resolution No. 10566 (adopting the General Plan Amendment). On August 1, 2011, the County Registrar certified that sufficient signatures had been submittedto qualify the referendum forthe ballot. On September6, 2011, the City Council placed the referendum ontheballot for the November 6, 2012 election. Jumping aheadin the story, on November6, 2012, the voters of the City defeated Measure FF, thereby nullifying Resolution No. 10566. Litigation On July 26, 2011, Milan filed a petition for writ of mandate and complaint for injunctive anddeclaratory relief, by which Milan soughtto stop the referendum of Resolution No. 10566 from proceeding dueto alleged improprieties in the signature- gathering process.” | In October 2011, Orange Citizens filed a cross-petition for writ ofmandate and cross-complaint for declaratory relief seeking to set aside the zone change and ° Mary E. Murphy,the City Clerk, and Neal Kelley, Registrar of Voters forthe County of Orange, were named as respondents and defendants. Orange Citizens forParks and Recreation was namedas thereal party in interest. 23 | development agreement as inconsistent with the City’s General Plan.’ Specifically, Orange Citizens contendedthat the referendum suspendedthe effectivenessofthe General Plan Amendment, and that without the General Plan Amendment, the City’s general plan designates the Property as open space. Milan responded with anotherpetition for writ ofmandate and cross- complaint for declaratory relief, specific performance,andinjunctive relief.” Bythis pleading, Milan soughtto establish it was entitled to proceed with the Project regardless ofthe outcomeofthe referendum because the Project was consistent with the general plan even withoutthe General Plan Amendment. Milancontended the Project was authorized andsupported bythe original designation of the Property as “Other Open Space and Low Density (1 Acre)” in 1973. Alternatively, Milan asserted that repeal of the General Plan Amendment would be improper andlegally void becauseit would create an internally inconsistent general plan. In January 2012, the parties stipulated to bifurcate and sever pleadings and causesofaction in an effort to obtain a speedy resolution ofcertain time sensitive issues. The stipulation indicated Orange Citizens’ cross-petition and four ofthe causesof action in Milan’s petition and cross-complaint were severed and bifurcated for a one-day bench trial based on the administrative record andtrial briefs. The court heard argumenton the bifurcated claims in March 2012. Trial Court’s Ruling On May7, 2012, the court issued a three-page minuteorder explainingits ruling in favor of Milan. The court did not explicitly defer to any of the City Council’s 7 . . e .The City and the City Council were named as cross-respondents and cross-defendants. Milan was namedasthereal party in interest. 8 The City, the City Council, and Neal Kelley were namedas respondents and cross-defendantsto this pleading. 24 findings. “Here, there is little question the City intended the [Orange Park Acres] Plan to be incorporatedinto the City’s general plan. The various City Council resolutions make that clear. It is equally clear that the [Orange Park Acres] Plan designates the . . . Project site as “Other Open Space and Low Density (1 acre.) Whileitis true that subsequent resolutions and general plan documents describe the property as ‘open space,’ none of these documents were sufficient to officially amendthe original designation as set forth in the [Orange Park Acres] Plan. They were, simply, inaccurate designations. ... The fact that the [Orange Park Acres] Plan was created over forty years agois irrelevant. Landuseplanningis long range planning designed to control developmentforyears to come.” “The [General Plan Amendment] did not attempt to change the land use designation established in the [Orange Park Acres] Plan. Instead,its chief purpose was to correcterrors that occurred over the years in describing the land use designation for the . . . Project and clarify that the . . . Project was indeed designated as low density. Thus, evenifthe voters reject the [General Plan Amendment], the designation remains the same. The record will simply continueto contain inconsistent and confusing references to the property being designated open space. For that reason,the developer and the City do not have to await the outcome ofthe referendum to begin the project.” On June 19, 2012, the court issued a peremptory writ of mandamus addressed to the City and the City Council. The writ commandedthe City and City Councilto rescind applicable resolutions and “remove the referendum regarding the General Plan Amendment from the November 6, 2012 election ballot.” The writ further commandedthe City and City Council to permit Milan to develop the Property “in accordancewith the actual and original General Plan designation ofthe property as ‘Other Open Space and Low Density (1 Acre), and the Development Agreement, andall other applicable requirements of the City.” 25 OnJuly 9, 2012, the court entered judgmentonthe claims beforeit at the March 2012 trial. In addition to ordering issuance ofthe writ of mandate, judgment was entered in favor ofMilan and the City (and City-affiliated parties) and against Orange Citizens on all causes of action at issue. Court ofAppeal Writ andAppellate Proceedings On June8, 2012, Orange Citizens filed with this court a petition for writ relief, includingan immediate stay ofthe court’s May 7 minute order. Orange Citizens requested a peremptory writ of mandatedirectingthetrial court to: (1) vacate its May 7 minute order;(2) restore the referendum to the November 6, 2012 ballot; and (3) enter judgmentin favor of the Orange Citizens and against Milan onall claimsat issue. Orange Citizens subsequently submitted a copy of the trial court’s peremptory writ of mandamus,ofwhich this court took judicial notice. On July 12, 2012, we issued an order to show cause why mandate or other appropriate relief should not issue. Wealso granted Orange Citizens’ requestfora stay of the court’s May7 order and the resulting peremptory writ of mandate. On July 26, 2012, Orange Citizens filed a notice of appeal of the July 9 judgment. On August 9, 2012, we consolidatedthe appeal with the writ petition forall purposes. DISCUSSION So what is the City’s general plan with regard to the land use designation of the Property, without reference to the General Plan Amendment (which was voted down by referendum)? Andis the general plan consistent with the Project? There are three possibilities advanced bytheparties. First, as asserted by OrangeCitizens, the general plan allows only open spaceuses at the Property. A general plan amendmentis necessary to change the 26 designation ofthe Property from open space to low density residential. -To reach this conclusion, one must simply review the 2010 Policy Map adoptedby the City Council as part of the 2010 general plan, which designates the Property as “Open Space.” There is - no needto revisit ancient history. And evenif one ventures into out-of-date planning records(e.g., the 1989 generalplan, the Orange Park Acres plan), there is no general plan mapor any other post-1973 documentin the extant records authorizing developmentof the Property for use as residences. In sum,the generalplan consists of the most recent objective evidenceofthe general plan (i.e., text and diagramspresentedto the public as - the generalplan), not some long forgotten remnant ofdayspast. Second, as argued by Milan andtheCity, the general plan allows low density residences on the Property. A general plan amendment was unnecessary to approve the development agreement, zone changes, environmental impactreport, and subdivision map. Thus, the Project can go forward despite the referendum. This conclusion vindicatesthe original intent of the City Council that adopted the Orange Park | Acres plan in 1973. As adopted, the Orange Park Acres plan authorized low density residential developmenton the Property. Although various “clerical errors” occurred through the yearsin the City’s planning documents (which could lead an uninformed observerto infer that the Orange Park Acres plan was a specific plan and the Property _ could only be used as open space), no City Council everintentionally reversed the legislative policy choice made by the 1973 City Council. Indeed, on repeated occasions, City Council resolutions havereaffirmed the continuing vitality of the Orange Park Acres plan aspart of the general plan. (§ 65301, subd. (b) [“general plan may be adopted as a single document or as a group of documentsrelating to subjects or geographic segments of the planning area”].) And the Orange Park Acresplan (in contrast to the City’s broader general plan) has never been comprehensively amendedor specifically amended to restrict the Property to open space uses. It is easy enough to see how theerrors designating the Property as “Open Space” may have occurred. The Property was largely 27 outside of the City’s borders from1973 to 1985. The Property was actually utilized as open space from 1973 until 2007, obviating the need for anyone to examine whether a residential use was acceptable underthe general plan. The open space designation could have been copied from the proposed Orange Park Acres plan map to the 1989 Policy Map to the 2010 Policy Map,each time without consideration ofthe accuracy of prior designations. Ideally, of course, these mistakes would not have occurred. It should be easy for the public to determine what the general plan has to say aboutthe uses allowed ' On a particular property. But general plans contain an enormous amountofinformation | and policy maps cover widestretches of real estate. When these sorts of mistakes inevitably occur, the subjective intent of the City Council should be honoredoverclerical errors manifested in planning maps. Third, the general plan is hopelessly inconsistent and therefore indeterminate on the question of developing low density residenceson the Property. Perhaps the Orange Park Acres plan is still part of the general plan and allows residential developmenton the Property. But the 2010 Policy Mapallows only open space uses on - the Property. Although it is clear what the 1973 City Council intended,it is impossible to divine what subsequent City Councils would have done had they explicitly considered Resolution No. 3915 (the 1973 City Council adoption of the Orange Park Acres plan as amended) andits effect on the land use designation of the Property on various general plan maps. This is Orange Citizens’ fallback position; they contend internal inconsistency in a generalplan necessitates an amendmentto the general plan priorto the approvalofa project affected by the inconsistency. Standard ofReview The primary issue presented for our review is the question of whether the Project is consistent with the City’s pre-General Plan Amendment general plan. By petition for writ of mandate, Orange Citizens challenged as inconsistent with the City’s 28 generalplan the July 12, 2011 decision of the City Council to approve a zone change and development agreement. Relatedly, Milan’s first and fourth causes ofaction alleged the City acted correctly in approving the Project notwithstanding the pendencyofthe referendum. | The peripheral dispute is Milan’s petition for writ ofmandamus to invalidate the referendum on the grounds it would create an inconsistencyin the City’s general plan. Thispetition is in tension with Milan’s position that the pre-amendment generalplan is consistent with the Project. But as characterized in the parties’ stipulation, this is an argument madein the “alternative[].” “Wereview decisions regarding consistency with a general plan underthe arbitrary and capricious standard. Theseare quasi-legislative acts reviewed by ordinary mandamus, and the inquiry is whether the decision is arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citations.] Under this standard, we defer to an agency’sfactual finding of consistency unless no reasonable person could have reached the same conclusion on the evidence beforeit.” (Endangered Habitats League, Inc. v. County ofOrange (2005) 131 Cal.App.4th 777, 782.) “Tt is, emphatically, not the role of the courts to micromanage these developmentdecisions.’ [Citation.] Thus, as long as the City reasonably could have made a determination of consistency, the City’s decision mustbe upheld, regardless ofwhether we would have made that determinationin thefirst instance.” (California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 638.) Wereview the City Council’s decision and donotdeferto the trial court. (/d. at p. 637.) — ° Although the parties included causes of action for declaratory relief, specific performance, and injunctiverelief in their pleadings, any remedies provided pursuant to these causes of action wouldnecessarily be derivative ofrelief obtained via mandamusreview ofthe City Council’s acts. 29 “A court ... cannot disturb a general plan based on violation of the internal consistency and correlation requirements unless, based on the evidence before the city council, a reasonable person could not conclude that the plan is internally consistentor correlative.” (Federation ofHillside & Canyon Assns. v. City ofLos Angeles (2004) 126 Cal.App.4th 1180, 1195; see § 65751 [action challenging general plan elements or internal consistency must be brought under CodeCiv. Proc., § 1085,i.e., ordinary mandamus].) . OrangeCitizens contend our review is de novo. De novoreviewis appropriate where the propriety of a land use decision turns on the correct interpretation. of a statute. (See, e.g., Harroman Co.v. Town ofTiburon (1991) 235 Cal.App.3d 388, 392-393 (Harroman).) In Harroman,the dispute concerned whetheran established general plan or a draft revised plan applied to a proposedproject. (id. at p. 390.) The contents of the established general plan and thedraft revised plan were clear. It was also clear that the established general plan wasconsistent with the project but the draft revised plan wasinconsistent with the project. (/d. at pp. 391-392.) The only question for the court was whetherthe legislative body had correctly determined that the Government Code dictated that a draft amendedgeneral plan applied to a pending project application. (Jd. at pp. 392-393.) Here, we are reviewing the City’s Council’s determination of the contents of the City’s general plan and its concomitant finding of the Project’s consistency with that general plan. (See No Oil, Inc. v. City ofLos Angeles (1987) 196 Cal.App.3d 223, 243, 247 [city council’s “interpretation of its own land use document” and consistency finding can be reversedonly if “a reasonable person could not have reached the same conclusion”].) Of course, to the extent we must interpret applicable Statutes in assessing the reasonablenessofthe City Council’s determination, we will not defer to the City Council’ S express or implied interpretations of those statutes. Orange Citizensalso claim we cannot defer to the City Council’s consistency determination because the City Council actually limited its consistency 30 findingsto the post-General Plan Amendmentgeneral plan. In approvingthe pertinent ordinances, the City Council referred to the general plan as amended by the General Plan Amendment. Obviously, the City Council did not know at the time that Orange Citizens would succeedin defeating the General Plan Amendment by referendum. Becausethe voters voided the General Plan Amendment,there is no post-General Plan Amendmentgeneral plan to be consistent with the Project. But Orange Citizens ignores the City Council’s repeated findings in multiple resolutions andthe challenged ordinances that the Orange Park Acres Plan waspart of the City’s general plan and that the General Plan Amendmentdid not amend the land use designation ofthe Property, which remained low density residential (1 acre). OrangeCitizens do not identify any of the other features of the General Plan Amendmentas necessary for the Project to be found consistent with the general plan. Taken at face value, the City did not amend the land use designation ofthe Property by meansofthe General Plan Amendment. Thus, reference to the amendedgeneralplan does not negate any deference owedto the City Council’s approval of the zone change and development agreement. The Merits: Composition ofthe General Plan andIts Consistency with the Project “[S]tate law does not require precise conformity of a proposed project with the land use designation fora site, or an exact match between the project and the applicable general plan. [Citations.] Instead, a finding of consistency requires only that ° The twoordinancesactually challenged by Orange Citizens include the zone change and the approval of the development agreement. The City Council found the zone change was “consistent with and furthers the objectives and policiesof the Orange Park Acres Plan, whichis part of the land use elementofthe General Plan,as amended by General Plan Amendment 2007-0001 ....” The City Council found the development agreementto be “consistent with the objectives, policies, general land uses, and programsspecified in . . . the General Plan, as amended by General Plan Amendment 2007-0001, which General Plan includesthe Orange Park Acres Plan as part ofits land use element.” . 31 the proposedproject be ‘compatible with the objectives, policies, general land uses, and programsspecified in’ the applicable plan. [Citation.] The courts have interpreted this provision as requiring that a project be “in agreement or harmony with”? the terms of the applicable plan, notin rigid conformity with every detail thereof.” (San Franciscans Upholding the Downtown Planv. C.ity and County ofSan Francisco (2002) 102 Cal.App.4th 656, 678.) Our comprehensivereview ofthe record leads us to conclude that reasonablepersonscan disagreeasto the actual composition of the City’s general plan andits consistency with the Project. There is substantial evidentiary support for the City Council’s finding that the City’s general plan allowed low density residential developmentat the Property by wayofthe Orange Park Acres plan. Andit logically follows that it was reasonablefor the City Council to conclude the Project is consistent with the City’s general plan as interpreted by the City Council. This is not the end of our inquiry, however. OrangeCitizens posit that, as a matter of law, the City’s general plan does not include the Orange Park Acres plan and/or the low density residential designation. The Alleged Lack ofImplementation ofthe 1973 Amendmentto the OrangePark Acres Plan Is Not Dispositive OrangeCitizensfirst suggest the City Council’s amendmentofthe proposed Orange Park Acresplan to allow low density residential developmentat the Property never becamepart of the City’s general plan becauseit was never “implemented.” Recall there was a Planning Commission resolution recommending this amendment, and the City Council resolution adopting the Orange Park Acres plan aspart of the general plan included the recommended amendment. (§ 65356 (“Thelegislative body shall adopt or amenda generalplan by resolution”].) Butthere is no evidence additional documentation was ever preparedbythe City (e.g., a mapor text addedto the 32 Orange Park Acresplan) to accurately reflect the composition of the Orange Park Acres plan as adopted by the City Council (rather than as proposedby the committee). OrangeCitizenscite City ofPowayv. City ofSan Diego (1991) 229 Cal.App.3d 847 (Poway) in support ofits argumentthat “implementation” (and not merely a resolution under § 65356) is necessary to amend a general plan. Poway addressed a circumstance in whicha legislative body’s amendmentofthe general plan was notreflected in the publicly available version of the general plan. Pomerado Road connects areas of northeast San Diego County with the City of San Diego (San Diego). (Poway, at p. 852.) San Diego’s general plan designated Pomerado Road as a “““major’” road. (/d. at pp. 852-853.) In 1987, San Diego annexed county land adjoining the City of Poway (Poway), through which ran a substandard portion of Pomerado Road. (d.at p. 853.) San Diego’s city council amended an applicable specific plan byresolution to allow for the closure of Pomerado Road, both until construction was completedto bring Pomerado Road up to San Diego standards and until an alternative route to Interstate 15, Scripps North Parkway, was constructed. (Ibid.) Subsequently, the San Diego city council passed an omnibusresolution incorporating 32 specific community plan amendments into San Diego’s general plan, including the Pomerado Road closure amendment. (Id. at p. 854.) “Two maps attachedto [this] resolution . . . showed the road, one designating it as an open majorstreet.” (ibid.) “The copy ofthe general plan bookletavailable to the public does not show any amendmentdesignating the road as closed.” (/d. at p. 856.) | | Pomerado Roadconstruction was completed before the Scripps North Parkway wasfinished. (Poway, supra, 229 Cal.App.3d at pp. 853-854.) San Diego did not reopen the reconstructed portion ofPomerado Roadatthis time. (Id. at p. 854-855.) The closure ofPomerado Roadnegatively affected traffic flow in Poway. (Id. at p. 854.) Powaypetitioned for a writ of mandate, arguing San Diego had a mandatory duty to reopen Pomerado Road. (Ud. at p. 855.) 33 Thetrial court issued a writ ofmandate in 1990. (Poway, supra, 229 Cal-App.3d at pp. 852, 855.) Based on the evidence before it, the trial court ruled that the specific plan amendmentwas insufficient to amendthe generalplan. (/d. at p. 855.) The text ofthe San Diegocity council resolution,“the general plan amendment, disappeared from view and was not founduntil the time of the motionfor newtrial on the petition for writ of mandate.” (Id. at p. 854, fn. 4.) Thetrial court denied San Diego’s motion for newtrial, which wasbasedonits rediscovery ofthe city council resolution amending the general plan. (/d. at pp. 855-856.) The appellate court affirmed on two independent grounds. First, it held that, regardless of the contents ofits general plan, Vehicle Code section 21 101, subdivision (D)," did not confer upon municipalities the right to close regionally significant streets or highways for merely parochial purposes(i.e., to reduce traffic for the benefit of the municipality’s residents at the expenseofoutsiders). (Poway, supra, 229 Cal.App.3d at pp. 851-852, 864-867.) Second,the appellate court held that San Diego had notvalidly amendedits general plan to allow for the closure, even if Vehicle Code section 21101 allowed it to close Pomerado Roadunderthe pertinent circumstances. (Poway, supra, 229 Cal.App.3d at pp. 859-863.) Onlythis latter analysis is relevantto the case before us. 1 we . wee ee“Local authorities, for those highways undertheir jurisdiction, may adopt rules and regulations by ordinance or resolution on the following matters”: “(f) Prohibiting entry to, or exit from, or both, from any street by meansofislands, curbs, traffic barriers, or other roadway design features to implementthe circulation element ofa generalplan adopted pursuantto Article 6 (commencing with Section 65350) of .Chapter 3 of Division 1 ofTitle 7 of the Government Code. The rules and regulationsauthorized bythis subdivision shall be consistent with the responsibility of local governmentto provide for the health and safety ofits citizens.” (Veh. Code, § 21101, subd. (f).) Apparently, San Diego was authorized under Vehicle Code section 2] 367 toclose Pomerado Road while construction wasin progress. (Poway, supra, 229 Cal.App.3dat p. 861.) 34 The appellate court identified four shortcomings in San Diego’s position (i-e., its general plan incorporatedits specific plan amendment to close Pomerado Road until the completion of Scripps North Parkway): (1) the city council resolution incorporating the specific plan amendment was “never made available to the general- | public as required by. . . section 65357, subdivision (b)”; (2) the publicly available documents(i.e., the general plan booklet and maps) showed Pomerado Road to be open (Poway, supra, 229 Cal.App.3d at p. 862); (3) “[s]pecific plans must be consistent with general plans” under section 65454 (id. at p. 860); and (4) no additional amendments werepassedto “implement” the general plan amendment (Poway,at pp. 862-863 [“Even though the general plan is always subject to change [citation], the material in the plan must have somecurrentutility in order for the public to becomeinformedofthe current and projected land uses depicted in the plan”].) In sum, Poway provides some authority in support ofthe theory that publicly available documents arethe basis for a general plan, not resolutions forgotten by the planning agency. But Poway doesnot lead us to concludethe CityCouncil acted arbitrarily or capriciouslyin this case. First, Poway applied a different standard ofreview. Poway reviewedthetrialcourt’s order granting the petition for writ ofmandate andits order denying the motion for a newtrial for an abuse of discretion. (Poway, supra, 229 Cal.App.3d at pp. 858-859.) We are reviewing the City Council’s characterization of the contents of its own general plan and the consistencyofthe general plan with the Project.- Wewill reverse thetrial court only if the City Council’s determinations were arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. Second, Poway is factually and procedurally distinguishable. In Poway, an amendmentofthe specific plan occurred by resolution, which was not sufficiently implemented byan effective amendmentofthe general plan. Here, the entire Orange Park Acresplan (including the amended designation of the Property) was adopted by resolution as part of the City’s general plan. The City Council resolution adopting the 35 Orange Park Acres plan as amended was madeavailable to the public. There was no specific plan inconsistency with the general plan in 1973; the Orange Park Acres plan was the City’s general plan for Orange Park Acres. (§§ 65301, subd.(a) [“The general plan may be adopted in any format deemed appropriate or convenient by the legislative body,including the combining of elements”, 65301, subd. (b) [“The general plan may be adopted as a single documentoras a group of documents relating to subjects or geographic segments of the planning area”].) Moreover, unlike in Poway, the City Council was awareofits own 1973 resolution allowing low density residencesat the time ofits relevant legislative acts in 2011, andthetrial court was on notice of the 1973 amendmentbeforeit denied OrangeCitizens’ petitionfor writ of mandate. Finally, because of the lengthy amountoftimeat issuein the instantcase,it is less clear here what was madeavailable to the public in the 1970’s. Certainly, the evidence suggests the City’s general plan as presented to the public at a recent point in time did not include a copyofthe Planning Commission resolution setting forth the text of the amendment to the Orange Park Acres plan. Butthe record is silent as to what occurred in the 1970's. Moreover, section 65357, subdivision (b), which Powaycited in pointing outthat the general plan amendmentwas not madeavailable to the public, was only enacted in 1984. (Stats. 1984, ch. 1009, § 13.5 [adding public availability language]; Stats. 1985, ch. 338, § 1 [current form of § 65357].) Formersection 65360, from which section 65357 was derived, did not include specific language providing for distribution to membersofthe public who requested copies of the general plan. (Stats. 1965, ch. 1880, §5.) In sum, Poway suggests that courts should not overlook the objective manifestations of the generalplan (i.e., “implementation”) in favor ofthe subjective intent of the relevantlegislative body in every case. But wereject the notion that Poway controls here. It was not arbitrary or capricious for the City Council to concludethat the 36 City’s general plan in the 1970’s included a designation of the Property as open space or low density residential, despite the lack of evidence of “implementation.” The City Council DidNotAct Unreasonably in Concluding that the Orange ParkAcres Plan Was Not Superseded by Subsequent General Plans Next, Orange Citizens contend that regardless of what the general plan was in the 1970’s, the subsequent adoption of revised general plans in 1989 and 2010 with open space designationsin the respective policy maps superseded the Orange Park Acres plan’s amendedtext designation of the Property. Relatedly, Orange Citizens complain that the judgment“permits public entitiesto have one general plan that they release to the public anda different general plan thatthey can trot out to help favored developers avoid a potential referendum.” The process for adopting general plans and general plan amendments “would be meaningless if a city — or the courts — could simply declare that a city’s ‘real’ general plan is not the plan the city actually circulated and approved, but includes otherplansorpolicies that werenotpresented to the public as part of that general plan.” OrangeCitizens point to the distribution of the 2010 general plan for public review beforeits adoption and the presentation of the 2010 general plan as the City’s general plan (e.g., on the City’s website). The essential issue is what the City Council intended in 1989 and 2010 in enacting the general plans. (See Lesher, supra, 52 Cal.3d at pp. 541-542 [reviewing voterinitiative, holds that “dispositive question”in evaluating contents of general plan is voters’ intent].) “Basicto all statutory construction. . . is ascertaining and implementing the intentofthe adopting body. [Citations.] Absent ambiguity, we presumethat the” adopting bodyintended the meaning on the face of an enactment“and the court may not add to the statute or rewrite it to conform to an assumed intent that is not apparentin its language.” (ld. at p. 543 [analyzing voterinitiative to determine whetherit amended 37 general plan].) When there is an ambiguity in a statute, courts refer to a variety of interpretive aids — includinglegislative history andpurposes — to determine the legislative body’s intent. (Southern California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship Council (2013) 213 Cal.App.4th 1531, 1545.) Similarly, when there is ambiguity in the text of a local ordinance, those taskedwith interpreting and applying it can look to these same interpretive aids. (See Bravo Vending v. City ofRancho Mirage (1993) 16-Cal.App.4th 383, 407-408.) Undoubtedly, the 1989 and/or 2010 general plans could have superseded the Orange Park Acres plan. “Local agencies must periodically review and revise their general plans as circumstances warrant .. . .” (Citizens ofGoleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 572.) If it is intended to do so, a revised general plan takes precedence overan older general plan. (See, e.g., Harroman, supra, 235 Cal.App.3d at pp. 395-396 [“provisions of existing general plan under review” were suspended to ensure consistency with draft general plan].) Had the 1989 or 2010 general plan plainly expressed the intent to eliminate the ongoing viability of the Orange Park Acres plan, we would nothesitate to characterize the City Council’s actions as arbitrary and capricious. But on the other hand, the Orange Park Acres plan could also have remained part of the City’s general plan, as it was when adopted in 1973. An inconsistent land use designation on the “General Plan Land Use Policy Map”does not necessarily entail a conclusion that a zone change ordinanceis inconsistent with the generalplan. (Las Virgenes Homeowners Federation, Inc. v. County ofLos Angeles (1986) 177 Cal.App.3d 300, 310.) In Las Virgenes, the “General Plan Land Use Policy Map” designated the relevantreal estate as “nonurban,” which“calls for less than one dwelling unit per acre.” (Jbid.) An area plan, considered part of the general plan for the portion of Los Angeles County at issue, designated the parcel as “residential, with two to four dwelling units per acre allowed.” (/bid.) The county’s approvalof the project was not 38 arbitrary or capricious because it was reasonable to concludethat the area plan served “to complete, extend andrefine the General Plan land use policy, not contradictit.” (Jd. at p. 312.) Las Virgenes differs from the instant case in that the county’s general plan explicitly stated that the policy maps were “general in character and are not to be interpreted literally or precisely” because of the vast areas shown. (Id. at p. 310.) Nonetheless, Las Virgenes demonstratesthat the Policy Mapis notthe end of the analysis. (See also Garat v. City ofRiverside (1991) 2 Cal.App.4th 259, 297, overruled on other grounds in Morehart v. County ofSanta Barbara (1994) 7 Cal.4th 725, 743, fn. 11 [“ease of access to a plan (as opposed to whetherit actually exists) is not a basis for attack under a mandate action”].) It is unclear from the 1989 or 2010 general plans precisely what was intended with regard to the Orange Park Acres plan. There are contradictory references to the Orange Park Acres plan within these documents. Otherresolutions by the City Council both before and after the adoption of the 1989 and 2010 generalplans further muddied the waters. Given this uncertainty, we are unwilling to concludethat the City Council acted unreasonably by finding the 1989 and/or 2010 general plans were not intended to supersede the Orange Park Acres plan, and that the low density residential designation therefore survived the adoption of the 1989 and 2010 general plans. Theslippery slope alluded to by Orange Citizens(i.e., municipalities could in badfaith retain hidden general plan documents to use when favored developers sought special treatment) does not concern us,asit has little to do with this case. It is notas if the City Council invented an alternate general plan out of whole cloth. There is no evidence of bad faith. Instead, the most reasonable inference from the record is that a seemingly insignificant (at the time) error of omission by City planning employees in the early 1970’s reared its ugly head 30 yearslater. 39 The Alleged Internal Inconsistency ofthe General Plan Does Not Mean the City Council Acted Unreasonably in Approvingthe Project Asits faliback position, Orange Citizens claim that if the Orange Park Acres plan is still part of the general plan, the City’s general plan is internally inconsistent and cannotprovide the basis for approval of the Project. Clearly, the Policy Mapis not the same as the Orange Park Acres plan designation for the Property. And in its attempted adoption of the General Plan Amendmentandin the other 2011 resolutions andordinances approving the Project, the City Council admittedto at least some lack of clarity in its general plan. | “If a generalplan is to fulfill its function as a ‘constitution’ guiding ‘an effective planning process,’ a general plan must be reasonablyconsistent and integrated on its face. Adocumentthat, on its face, displays substantial contradictions and inconsistencies cannotserve as an effective plan because those subject.to the plancannot tell what is says should happenor not happen. Whena court rules a facially inconsistent plan unlawful and requiresa local agency to adopt a consistent plan, the court is not evaluating the merits of the plan; rather, the court is simply directing the local agency to state with reasonable clarity what its plan is.” (Concerned Citizens ofCalaveras County v. Board ofSupervisors (1985) 166 Cal.App.3d 90, 97 (Calaveras);id. at pp. 94-95, 103 [case in which adoption ofgeneral plan was challenged becauselanduse elementcalled for large population growth while circulation element did not address how to pay for additional circulation infrastructure other than lobbying the state for additional funds].) Ifit is determinedthat a facially inconsistent general plan was adopted, the | remedyis the issuance of a writ of mandate directing the legislative body to set asideits adoption of deficient elements and to adoptlegally sufficient elements. (Calaveras, supra, 166 Cal.App.3dat p. 105.) Of course, OrangeCitizens are not asking this court to order the City Council to set aside its adoption of the 2010 general plan andclarify the land use element with regard to use of the Property. The City Councilalready attempted 40 to clarify the contentsof its general plan via the General Plan Amendment, which was nullified via referendum. Instead, Orange Citizens assert that the internal inconsistency of the City’s general plan precludes approvalofthe Project via the zone change and development agreement. In support of its argument, Orange Citizenscite Sierra Club v. Board of Supervisors (1981) 126 Cal.App.3d 698 (Sierra Club). There, the general plan was deemedto be internally inconsistent becauseits land use and open space elements (including relevant maps) designated the same property for different uses. (/d. at p. 703.) Despite an awareness ofinconsistencies in the two elementsat the time the general plan was adopted, planningofficials opted not to harmonize the elements by actually considering the best use for each geographical area. Instead, the planning agency inserted a “precedence clause”in the general plan, which providedthat in case of conflict between the land use and open space elements, the land use element designation had precedence. (/bid.) Sierra Club’s challenge to a zoning change necessary for a particular project was mootbecause, during the courseofthelitigation, the legislative body amended the general plan to explicitly reconcile the land use and open space elements applicable to the affected geographical region. (Sierra Club, supra, 126 Cal.App.3datp. 704-705.) The appellate court nevertheless found the precedence clause (which was still applicable to muchofthe county’s general plan) to violate the purpose of the Open Space Lands Act (§ 65560 et seq): “The legislative intent. . . [citation] is frustrated if counties can simply subordinate the open space element to other elements of the general plan.” (Sierra Club, supra, 126 Cal.App.3d at p. 704.) With the precedenceclause invalidated, the court deemed the general plan to be internally inconsistent and concludedthat (were the issue not moot) the zoning ordinance under review “could not be consistent with such plan [citation] and was invalid when passed.” (/bid.) 4) Sierra Clubis inapplicable to the facts before us. The Sierra Club court was concerned with planning agencies intentionally avoiding their obligation to “adopt a comprehensive, long-term general plan” (§ 65300) with all seven required elements (§ 65302). The Legislature intendedthat“the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statementofpolicies for the adopting agency.” (§ 65300.5.) By simply inserting a precedence clauseinto its general plan, the county partially abdicated its obligation to prepare a generalplan. Here, the City unintentionally allowed a single ambiguity to creepinto its general plan. When the ambiguity was discovered, the City Council analyzed the _ Situation and concludedthata classification of the Property as solely open space was inaccurate and not in keeping with its intent. The City Council attempted to remove the erroneousinformation from the general plan. That the erroneous information remains in the Policy Mapbecauseofthe referendum doesnotalter the reasonableness ofthe City Council’s conclusion that the open space designation is an error and not a substantive inconsistency like that present in Calaveras and Sierra Club. The Merits: Validity ofReferendum Voiding General Plan Amendment Bystaying the trial court’s writ of mandate, we allowed an election to proceed on the question of whether the modifications proposed in the General Plan Amendment should be incorporatedinto the City’s general plan. Thevoters of the City said no. Orange Citizensstate in their openingbriefthat the court erred by issuing a writ of mandate to the City to “[r]escind Resolutions 10580 and 10581 and remove the referendum regarding the General Plan Amendment from the November 6, 2012 election ballot.” Neither Milan nor the City defendthis part of the court’s judgmentin their briefs. Moreover,the question of allowing the referendum to proceed is moot. Wealso note it would be contradictory to find that the Project is consistent with the general plan (without the General Plan Amendment), but that the nullification of the General Plan 42 Amendmentby referendum created unacceptable inconsistency in the general plan. We therefore agree with Orange Citizens that the judgmentshould bereversed in part. Milan and the City ignore the question of the validity of the referendum and instead argue that the General Plan Amendment was simply unnecessary for approval of the Project. As discussed above, we agree. In 1973, the City Council adopted the Orange Park Acresplan as part of the general plan, andin doing so designated the Property as open space or low density residential. In 1977, the City Council resolved to remove any languagein the Orange Park Acres plan inaccurately suggesting it was a specific plan. In 2011, the City Council repeatedly found the Orange Park Acres plan wasstill part of the general plan and the Property’s use designationstill allowed low density residential development. The City mayfix errors in the Orange Park Acres Plan and the Policy Map by reference to previously adoptedresolutions of the City Council. The General Plan Amendmentwas nullified by the voters, but it does not matter with regard to the major points of contention. Noneofthe parties specifically address the portion of the judgment ordering the issuance of a writ of mandate that commandsthe City to “[p]ermit Milan to develop the . . . Property in accordance with the actual and original General Plan designation of the property as ‘Other Open Space and Low Density (1 Acre)’ and the Development Agreement, and all other applicable requirements ofthe City.” It is unclear whythis relief was strictly necessary, but the City does not objectinits brief to allowing this portion of the judgmentto remain in force. We therefore affirm this portion of the judgment. DISPOSITION The judgment is affirmed in part and reversed in part. We reverse the judgmentin favor of Milan on its second causeof action for writ of mandate (which had 43 challenged placementofthe referendum onthe ballot), the fifth cause of action for declaratory relief (which had sought a declaration of invalidity of the referendum), and the portion of the judgment ordering the issuance ofa writ of mandate rescinding the City’s resolutions Nos. 10580 and 10581 (which had placed the referendum on the ballot). The judgmentis otherwise affirmed. Orange Citizens’ petition for writ of mandate is denied. Orange Citizens’ request and supplemental request for judicial notice are granted. Our July 12, 2012 stay orderis lifted. In the interests ofjustice, the parties shall bear their own costs on appeal. IKOLA,J. WE CONCUR: O’LEARY,P.J. RYLAARSDAM,J. 44 INTRODUCTION i these workshops. the City made a special effort to reach out to both youth and seniors, with individual workshops focused upan each of these groups. Other community participation tools included joint Workshops with the City Council andthe Planning Commission, and working with the Chamber of Commerce's junit Leadership group, The City also invited representatives of the regions’ Native American tribes to contribute to the process. The tribes contacted included the juaneno Band of Mission Indians and the GabrielenosTongya Tribal Council development = Land Use Element *Cinculation & Mobility Element = Natural Resources Element + Public Safety Element = Nosse Flement + Growth Management Element = Cultural Resources &Histone Preservation Element + infrastructure Element = Urban DesignElement = Economic Development Element © Housing Element AAsshown in Figure |-4, Orange's General Plan sometimes deviates from the state- and county- rmianwlated elements in non-substantive ways to better conform to the objectives of the Vision Statement, for example, the state-required Conservation and Open-Space Elements have been combined in the Natural Resources Element. In addition to the state-mandated elements, stipulations of Orange County's Measure M require cities to prepare a Growth Management Element, addressingtimely provision of capital facilities and public services associated with new development. ‘The Ovange General Plan alse includes optional elements that address unique concerns that wil affect Orange's quality of life in the future. These optional elements inchide Cuftural Resources & Historic Preservation, Infrastructure, Urban Design, and Economic Development. Several supporting documents were produced during the developmerit of the General Plan. including, the General Plaa Program Environmental inipact Report (Program £8). Other technical reports and studies used in preparing the Plan inchide an existing land use survey. a tralic/citculation model, 3 historic resources inventory and cultural resources predictive model, and market studies and fiscal impact reports for opportunity areas identified in the Land Use Uement, ‘ORANGEGENERALPLAN 120 04044 INTRODUCTION Ls Generai Plan Structure and’Lach element ray stand alone, but isalso an integral part of the overall plan. The General Plan is accompanied by an Implementation Program and Glossary. tach of the elements is organized according to the following format: |} Introduction; 2} Issues, Goals. and Policies; and 3) thePlan The Introduction of each element describes the focus and the puspose of the element. The relationship of the element to other General Plar elementsis alse specified in the intsoduction. The issues. Goals, and Policies section of each element contains @ descriptionof identified planning issues, goals, and policies related to the element topic, based on input received fiom the community, members of the GPAC, and members of the City Council, Planning Commission, and City staff, Issues represent the needs, concerns, or desires addressed by the General Plan. Goats are overall statements of community desires and consist of broad statements of purpose or directian, Policies serve as guides to the City Councit ané City stall in ceviewing development proposals and making other decisions thataffect future growtn and develooment in Orange, Each element also containsa Plansection, fhe Plan section offers an overview af the C'tStace 's course of action to implement jgertified goals and policies, ls Following the elements is the émplementalion Frogram, which identifies specific actions co achieve the goals, policies. ed piars «entified in eack: General Plan element. The linplementaticn Program is plovided as an Apzeadix to the General Plan, The organization of the General Plan allows users ta identify the section that interests them and quickly obtain a perspective of the City's policies onthat subject. However, General Plan users should realize that the policies in the various elements ate interrelated and should be examined collectively. Poficies are presented as written statements, tables. diagrams, and maps. All of these components must be considered together when making planning decisions so, regional governmental agencies, such 2s the Socthesn California Association of Gaverrunents (SCAG), the South Coast Air Quelity Management District {SCAQMD), and the Regional Water Quality Contrat Board (RWB) have been established in recognition of the fact that planning issues extend beyond the boundariesof individual cite: Efforts to address regional planning issues such as zit and water quality, transportation, affordable housing, and habitat conservation have sesuilted in the adoption of segionalplans. The policies adopted by Orange will be affected by these plans, and will in tusn have effects on these other plans. a , making ‘ORANGE GENERALPLAN 122 04046 Orange Zoning Code The Zoning Code, the primary tool used io implementthe General Plan, regulates development typeand intensity citywide. Development regulations imposed include those setting limits on building height, requiring setbacks, and specifying the percentage of a site that must de landscaped. The Zoning Cadealso outlines standards for residential planned unit development and allordable housing, among many other lard use issues Orange Redevelopment Plans Under California law, cities can form redevelopment agencies and adopt redevelopment plans as mechanisins for facilitating community renew2). The Orange Redevelopment Agency {Agency} was established with redevelopment authority on August 11, 1983, with the adastian of Ordinance No. 21-83. Since then, the Agency has been instrumentalin upgrading the Tustin Street project asea, redeveloping the Southwest Project arez that includes the City’s southwest quadrant anc, the Old Towne Historic District, and renewing the Northwest Project area, which includes a large section of the City’s industrial areas. In 2001, the three redevelopment project areas were merged into one, known as the Orange Merged and Amended Redevelopment Project Area The Agency staves 10 achieve its three-fold mission: te enhance the cornmerctal and industeial ateas of the City: to revitalize those aseas: and to increase, improve, and preserve the community's supply of low- and moderate-incorne housing available at affordable housing cost. Orange's City Council acts a3 the governing board of the RedevelopmentAgency, Specific Plan is a cetalfed plan for the development. of a particular area, Falling under the broat umbrella of the General Plan, Specilic Plane are intended to provide more finite specification of the typesof uses to be permitted, development stancards (setbacks, heights, lendscape., architecture. etc), and circulation and infrastructure improvements within identified subareas cf the City Specific Plans are often used to ensure that multiple property owners and developers adhere to a single common cevelopment plan. Further. they can provide fexibility in development standards beyond those contained in the Zoning Osdinarce, Orange has utilizes Specific Plans and Neighbarhood Plans as tools te achieve the coordinated development oS individual parcels within a broader context. Adopted Specific Plans and Neighborhood Plans include. s Aschstose Gateway = Chapman University = Immanuel Lutheran Church = Pinnacle at Uptown Orange © St. John’s Lutheran Church ané School Santa Fe Depot Area Serrano Heights * Upper Peters Canyon the 1975 East Orange General Pian aneAcresideyelopment ‘ORANGE GENERALPLAN 423 04047 r The proposed land use esignations identify the types and satuse of development permitted throughout che planning area, The goals and policies contained in this Element are designet! ta ensure land use diversity and balanced development: encourage mixed-use development; promote commercial enterprise in Orange: encourage high quality industrial development, maintain and enhance the role of Oid Towne within the community: encourage effcient and responsible relationship between land use, transit. open space, and areas of eavitor mental sensitivity: evsure City interests are achieved through inter-jurisdicticnal and regional clanning; andencourage public invatyemest in land us planning decisions, Purposeofthe Land Use Element The Land Use Element is ane of seven elements eequired by the State to be included in Orange's General Plan, The Land Use Element directs and defines development aattems dy designating aowable uses, requiements, ang locations for both existing and future development. This Element has the most wide-ranging scope in the Genetal Plan, and affects all of the others Alshoughthe interpretation of the Land Use Element is the responsibility of che community's policymakers, this vision of long-term larid use will influence short-tem plars suck as infil development. Specific Plans, and public warks investments. Scope and Contentof the Land Use Element. divided GeneralThe issues, Goals, anal Policies section describes the City's intent to encourage dive:se land uses that foster a vibrant and sustainable community. and to coordimate planning end public participation activities in determining future land uses. Land The Land Plan complies with the requirements of the Land Use Lement as stated in Section 65302 of California's Government Code. Land uses requiring future planing inelude “housing, business, indusisy, open space, forest/timber, agiieulture, natural resources, recreation. scevuc beauty, education, public buildings and land, solid and liquid waste disposal faites, and other public and private uses of land.” The Land Use Plan also establishes standards for residential eM S ‘Onan GENERAL PLAN LU-2 04052 “Table LUI land Use Designations Description Public Faites end Open Space Designations Pri [Pee acesnests A wide range of potential teal and service commercial uses, in orjunetion’ with onsite paitand improvements, off-ste paskand, andlorpak iniprovements. Commecia se rayont be activated vhrough a Development Agieervent with the Cay thet denies specie pakiand cbigatons, Density orIntensityLand Use Designation |- Range Expected SCO Jrobs sown wax co FAR 0.987AR Commerc ovetiy | \ L ‘industri!Designations WU Yogi induatiat am 10 TaR ese FAR story net Tit Indust! Max 075 Fan 063 AR Allows for manulacwuring, oeessing, and dstibstion ef goods. /Whotesale aivities associated with industal operat, as well as siall-scale, syppot etal, sevice eomnmaealand alice use| may also be established i, ares with ready aecess to major escu ation routes A 3 story building neigh mit applies wittin ght ndustildesigrated atea6 Provides lor several types of publi, quasi-public and insttional che usestehools Max, 0.50 FOR ed Uses, incisingscbool, colnges and iver. Ciy and] Counsy facies, hospi, and mojorvilty easements and properties Ince sevice ogaiaions ahousing reed to sonal use. such 38 dormir, employee Peto.Sserecreatedsng| Pubic nds usedfor passiveand active recreationtnchudesa pattards cored and maintainedby the Cty of Orage, 95 wel = parks operatedby the County Careteries, Corporate yard Water towess,| 05 AR SoutherCaraEe an inst Schools, Water Department facies 3 FAR wie Center, Libraries, Pobce and fire] 25 TAR Departmentlites 35 FAR To FAR a Openinace= | NA "NB, Fock (Open Space | NA NA udgefinej RA [Hesouwce ves | | Areas designated open spaceto preserve visualsigaiicant ridgetines identified on the Land Use PolicyMap. No devepment os gradingis permutted Allowsfox agricutural uses and cotiwwed useof straand tve channels for aggregate ming. Passive ane active recreational uses am also perevitied, May sewe as 3 hldng zone for future ses compat wih esabted ad panedland uses m | sutousd.ng eas AAMN ‘ORANGE GENERAL PLAN ws 04065 taxon WEF General Plan and Zoning Consistency The Land Use Element is primarily implemented by the City's Zoning Code, which specifies districts and performance standards for various types of land uses described in the General Plan. Table LU-3 indicates the corresponding zone district that applies to each General Plan land use designation. The zone districts specify the permitted uses for each category as well as applicable development standards. Zone districts specified in Table LU-3 for Mixed-use General Plan designations are new districts, and will be developed as part of the Zoning Code update implementingthe Generai Plan A specific plan is a detailed plan for the development of a particular area. Specific plans are intended to provide finite specification of the types of uses to be permitted, development standards (setbacks, heights, landscape, architecture, etc), and circulation andinfrastructure improvements that are only broadly defined by the Genera! Plan. Specific pians are often used to ensure that multiple property owners and developers adhese to @ single common development plan. Specific plans are also used as a means of achieving superiordesign by providing flexibility in developmentstandards beyondthase contained in the Zoning Ordinance. ‘The City has used Specific Plans and Neighborhood Plans 3s tools to achieve the coordinated development of individual parcels. Archstone Gateway Chapman University East Orange Plan (1975) Immanuel Lutheran Church Park Pionacle atUptown Orange St. John’s Lutheran Church Santa Fe Depot Area Sesrano Heights Upper Peters Canyon ORsNax Gewenas, PLAN 1.24 04074 CityofAnaheim 2 Santa A n a 2DLUAC OldTowne S e t w n a e 1S DUACOS-1 OFAR 2 5 Figure LU-5 Land Use Policy M a p 7 04075 esth0 IMPLEMENTATION * Incorporation of sustainable development principles, such as the adoption of resource conservation measures for building codes and standards, and specificationsfor multi-modal tsansportation: = Maintenance ofthe building security ordinance and addition of a cpted element to those standards; and = Preparation of developmentstandards that address national pollutant cischarge elimination system (npdes) requirements. AgenicyfDepartment: Community Development Department, Police Department, Public Works Department Funding Source: General Fund, redevelopment funds Time Frame: Updated by December 2013, Related Policies: Land Use: WA 1243, 04 21, 22, 23, 24, 25,27, 2.8, 29, 4.1, 42.44.45, 5.1, 5.2, 5.3, 64,62, 64, 6.7.68, 6.9, 8.1 Cultural Resources & Historie Preservation: 1.3, 1.4.1.5, 2.1, 2.3.3.2,4 Public Salety: 23,2433, 72,75, 7.6.9.1 Noise: FI 12, 13,21, 22,31, 43, $4, 5.2, 53,616.27 Urban Design: LISAL744, 5.1, 5.2, 93,61, 63,66 Economic Development: 1.1, 1.3, 1.4.4.5, 5.3, 5.5 Programi2 —_Land Use Policy Map and Focus Area Development Objectives consistent oH UheUsing the development review process and other tools outlined throughout the General Plan, ensure that the development objectives specified for each of the eight focus areas described in the Lard Use Element are achieved for new development andinfil projects located in the focus areas. Agency/Department: Community Development Department Funding Source: Generat Fund Time Frame: Ongoing Related Policies: LandUse all Economic Development: 1.1, 12,1314, 15.16 1.7.54,32.33,34 2102 04566 ‘Chapman University East Orange General Plan (1975) Immanuel Lutheran Church Pinnacle at Uptown Orange St. John's Lutheran Church and Schoo! Santa Fe DepotArea Serrano Heights Upper Peters Canyon ‘New specific plans may be permitted elsewhere within the planning area in the lature. Through the specific plan process, encourage developers to include or provide = Context sensitivity and connectivity to surroundings, = Complementary mix of uses, = Pedestrian-oriented places, * Transit-oriented design, = Public spaces, © Green spaces, and © CPTED design features. Agency/Department: Community Development Department Funding Source: General Fund, redevelopment funds, private property owners Time Frame: Ais needed Related Policies: land Use: 24,24, 3.4, 3.1, 5.2, 53,55, 5.8, 5.9, 6.7, 6.10618, 7.1, 12 Circulation & Mobility: 3.2.3.3, Public Safety: 72 Usban Design: 1A 5.1, 5.2, 6.1, 6.2, 6.4 Program 1-4 Plans, Standards, and Guidelines Adopt, review, implement, and update as necessary the following master plans, standards, and guidelines: a ORANGE GENERALPLAN IMP-6 04567 10