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Date: 10-27-2019

Case Style:

Denham, LLC v. City of Richmond, Sierra Club, Intervener and Appellant

Case Number: A154759

Judge: Tucher, J.

Court: California Court of Appeals First Appellate District, Division Four on appeal from the Superior Court, County of Contra Costa

Plaintiff's Attorney: Andrew Biel Sabey, Ashley F. Weinstein-Carnes and Andrew B. Sabey

Defendant's Attorney: Holly Osborn Whatley and Zachary D. Cowan

Description: After the City Council of the City of Richmond (the City) adopted an initiative
amending its general plan to prohibit residential development on a stretch of hillside land,
property owners affected by the initiative brought this action challenging the initiative.
The trial court concluded the initiative rendered the City’s general plan internally
inconsistent and directed the City to vacate its adoption of the initiative. We agree with
the trial court that the initiative caused the general plan to become impermissibly
inconsistent, but disagree as to the appropriate remedy. We shall reverse the judgment
and direct the trial court to issue a writ of mandate ordering the City to cure the
To set the stage, we begin with a brief discussion of the role of a general plan.
Under state law, each city and county must “ ‘adopt a comprehensive, long-term general
plan’ for its own ‘physical development.’ ” (Orange Citizens for Parks & Recreation v.
Superior Court (2016) 2 Cal.5th 141, 152 (Orange Citizens), citing Gov. Code,
§ 65300.)1
A general plan must include eight mandatory elements: land use, housing,
conservation, open-space, circulation, noise, safety, and environmental justice.
(§ 65302.) “Because of its broad scope, long-range perspective, and primacy over
subsidiary land-use decisions, the ‘general plan has been aptly described as the
“constitution for all future developments” within the city or county.’ ” (Orange Citizens,
supra, 2 Cal.5th at p. 152.)
Virtually any local decision affecting land use and development must be consistent
with the general plan and its elements. (Citizens for Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 571.) The general plan must be internally consistent;
that is, the general plan and its elements must “comprise an integrated, internally
consistent and compatible statement of policies for the adopting agency.” (§ 65300.5.)
After all, “[a] document that, on its face, displays substantial contradictions and
inconsistencies cannot serve as an effective plan because those subject to the plan cannot
tell what it says should happen or not happen.” (Concerned Citizens of Calaveras County
v. Board of Supervisors (1985) 166 Cal.App.3d 90, 97 (Concerned Citizens).) Of
particular importance to this case, “amendments to the general plan must be internally
consistent and cannot cause the general plan to become internally inconsistent.” (Visalia
Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, 18.)
The plaintiffs in this action own property in the Richmond hills that they will not
be able to develop into residential neighborhoods as a result of the Richmond Hills
Initiative. Their property is designated “Hillside Residential” in the Richmond General
Plan 2030 (the general plan).
The land use element of the general plan defines various land use classifications,
and it maps out where in the City each should occur. The Hillside Residential
classification, one of several residential land use classifications, is defined to include

1All undesignated statutory references are to the Government Code.
“attached and detached single-family housing on subdivided parcels and clustered multifamily
residential on developable portions of hillside parcels below the 400-foot
The classification allows a density of up to five dwelling units per acre and
building height of up to 35 feet.
The Richmond Hills Initiative (the initiative) was signed by more than ten percent
of the City’s registered voters and filed with the City on November 10, 2016. In such a
circumstance, section 9215 of the Elections Code gives a city the choice to adopt the
initiative ordinance without alteration, submit it to the voters, or refer the matter to a city
agency for a report. (See Elec. Code, § 9212.) At a public hearing on January 24, 2017,
the City voted to adopt the initiative without alteration.
The initiative states that it “amends the Richmond General Plan by limiting
development and land uses in the Richmond Hills . . . .” The area subject to the initiative,
or the “Richmond Hills Initiative Area,” is described by identifying 38 parcels by
assessor’s parcel numbers. Much of the initiative area includes property designated
“Hillside Residential” in the general plan.
The initiative adds provisions to the general plan, specifically to the open-space
element of the general plan. Among the pertinent provisions, the initiative provides that
the minimum parcel size in the initiative area is 20 acres; that the maximum floor area for
all buildings in a parcel may not exceed 10,000 square feet; and that if residences and
residential accessory buildings are permitted, they may not exceed 5,000 square feet of
the 10,000 square foot maximum.
The initiative prohibits all residential development in the initiative area, unless a
court finds this prohibition unconstitutional. Specifically, under the heading “Permissible

2 The entirety of the General Plan’s description of the Hillside Residential
classification is: “Includes attached and detached single-family housing on subdivided
parcels and clustered multi-family residential on developable portions of hillside parcels
below the 400-foot elevation. Hillside development should address key environmental
challenges and constraints such as steep slopes and soil erosion. Neighborhood mixeduse
development is allowed at neighborhood nodes.” The specified density is up to five
dwelling units per acre, with building height up to 35 feet.
Uses,” the initiative allows in the initiative area “[t]he following uses only, and their
normal and appropriate accessory uses and structures”: agriculture; the processing,
packaging, storage, or sale of agriculture produce; the rearing, boarding, or sale of horses
and other animals; low-intensity outdoor recreation and exercise; “institutional and other
non-profit uses that predominantly serve” the local area; “small facilities for
convalescence, rehabilitation, and hospice care for not more than six patients each”;
government and public utility uses; and “short-term events related to agriculture, animals,
or outdoor recreation.” Notably, “[r]esidences, including mobile dwelling units, and
residential accessory buildings are not permitted under this subsection.” (Italics added.)
However, if a court finds that this prohibition on residential use constitutes a taking, one
single-family home may be built on each parcel (or 20 acres of a parcel), together with
normal accessory uses and structures.
The initiative also includes a number of specific amendments to the general plan,
which it states are “made to avoid any inconsistency in the General Plan and with State
housing law.” These consist of minor amendments to two paragraphs of the land use
element and more extensive amendments to the housing element. The changes to the
land use element do not change the definition of “Hillside Residential” or the maps
applying this classification to most of the initiative area. The changes to the housing
element include removing many of the parcels in the initiative area from the inventory of
vacant land available for housing development; reducing the tally of developable land in
the City zoned for residential and mixed-use development from 228 acres to 148 acres;
and specifying the Hilltop Mall area as suitable for high-density residential development.
Two property owners in the initiative area, Denham, LLC, and Nikta, LLC,
brought a petition for writ of mandate and complaint for damages challenging the
initiative on a variety of grounds, and another property owner, Gray1 Forest Green, LLC
(Gray1), intervened as a petitioner. The petition named the City and its City Council as
respondents and defendants, and the Sierra Club was allowed to intervene to defend the
initiative. After proceedings not at issue in this appeal, the trial court concluded the
initiative was inconsistent with the general plan and could not be given effect.3
It entered
judgment accordingly, and issued a writ of mandate directing the City, through its City
Council, to set aside and vacate its adoption of the initiative. Sierra Club has appealed.4
I. The General Plan Is Internally Inconsistent
Sierra Club contends the trial court erred in finding the initiative inconsistent with
the general plan. The amendment of a general plan is presumed valid, and we may not
disturb it based on internal inconsistency unless, based on the evidence, a reasonable
person could not conclude the plan is internally consistent. (South Orange County
Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1619 (South
Orange); accord, Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 292–293 (Garat),
disapproved on another point in Morehart v. County of Santa Barbara (1994) 7 Cal.4th
725, 743, fn. 11 [applying standard to initiative measure amending general plan].) We
reconcile portions of a general plan if reasonably possible. (No Oil, Inc. v. City of Los
Angeles (1987) 196 Cal.App.3d 223, 244 (No Oil).)
Petitioners have the burden to show the amendment rendered the general plan
internally inconsistent. (South Orange, supra, 196 Cal.App.4th at p. 1619.) We conduct
an independent review of a general plan’s adequacy and do not defer to the trial court’s
conclusions. (Garat, supra, 2 Cal.App.4th 259 at p. 292.)
The general plan amendment here was made through the initiative process. As a
result, it did not have the benefit of the procedures that are normally followed when a city
amends its general plan, which may allow it to spot and remedy problems with a

3 The court granted the petition for writ of mandate solely on petitioners’ first
cause of action, which alleged the initiative was inconsistent with the general plan. The
court entered judgment in favor of the City on several other causes of action, and
petitioners dismissed their remaining causes of action.
4 The City did not file a notice of appeal, although it submitted pleadings joining
in Sierra Club’s briefs on appeal. Denham, LLC and Nikta, LLC filed a cross-appeal,
which they have since dismissed, and we are informed that they may have been dismissed
from the action entirely. The respondent’s brief was filed only on behalf of Gray1.
proposed amendment. Those procedures involve public hearings and other means for
citizens, public agencies, and other groups to participate (§ 65351); referrals to a number
of public entities that are nearby or that might be affected by the action, including the
county (§§ 65352, 65919, subd. (c), 65919.3, 65919.4, 65919.5); and submission of
proposed amendments to the housing element of a general plan to the California
Department of Housing and Community Development for review and written findings.
(§ 65585, subd. (b).) But a general plan may be amended by initiative, and an
amendment by initiative bypasses these procedural steps. (See DeVita v. County of Napa
(1995) 9 Cal.4th 763, 795–796 (DeVita).)
With regard to substance, however, courts do not use a “double standard for
initiative amendments and general plan amendments enacted by the legislative body.”
(DeVita, supra, 9 Cal.4th at p. 796, fn. 12.) An amendment adopted by initiative is
“ ‘subject to the same constitutional limitations and rules of construction as are other
statutes.’ ” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531,
540 (Lesher).) Thus, a general plan amendment adopted by initiative may not be
internally inconsistent, and like any other general plan amendment, it must not cause the
general plan to become internally inconsistent. (DaVita, at p. 796, fn. 12, citing
§ 65300.5.)
A. The Initiative Creates an Inconsistency
This initiative on its face creates an inconsistency in the general plan: The maps
in the land use element place the property at issue in the Hillside Residential
classification, which it still defines as including single-family housing on subdivided
parcels and multifamily housing “on developable portions of hillside parcels below the
400-foot elevation,” with density of up to five dwelling units per acre. But the initiative
by its terms amends a different element of the general plan—the open-space element—to
prohibit residences in the initiative area, except to the extent a court finds a taking, in
which case a single home is allowed on each parcel of at least 20 acres. The initiative
does not amend either the text or the maps in the general plan’s land use element to show
a different designation for the property, or to describe the Hillside Residential designation
in a manner consistent with the initiative. Thus, different elements of the general plan
describe incompatible uses for the same property.
Sierra Club advances a number of arguments to contend there is no inconsistency.
In perhaps the strongest of these, it argues the initiative’s provision for a “Transferable
Development Credit” program remedies the inconsistency. The existing general plan’s
open-space element contemplates development of a program for transferring
“development privileges” from “natural areas” to other parts of the City. The initiative
establishes a transferable development program, under which property owners in the
initiative area are granted credits to build residences elsewhere in the City without
complying with density limitations or other land use regulations that would otherwise bar
their construction in the “receiving area,” as long as the residences are similar to the type
of residences that could otherwise be built there. The credits are limited to one per parcel
in the initiative area or, where a parcel is more than five acres, one credit for each five
We are not persuaded that this program makes the initiative consistent with the
property’s Hillside Residential designation. That designation indicates that property in
the initiative area is suitable for residential use and for up to five dwelling units per acre.
Under the initiative’s transferable development program, a landowner receives, instead of
permission to build such housing, credits to build a far smaller number of units in a
different area of the City. While the availability of transferable development credits may
mitigate the property owner’s financial losses, it does not cure the inconsistency between
the Hillside Residential designation and the initiative’s ban on residential development.
The fact remains that the land use element of the general plan authorizes considerable
residential development in the initiative area, and the initiative forbids it.
As further support for its claim that the initiative is consistent with the Hillside
Residential designation, Sierra Club contends the initiative does not prohibit all
residential development because it allows hospice facilities for no more than six patients.
It argues that hospice facilities are considered “ ‘Residential Facilit[ies]’ ” under the
City’s zoning ordinance, and hence, the initiative allows residential uses. But the
initiative amends the general plan to describe the permitted uses for the property—
including hospice facilities—as “nonresidential uses,” and the subsection setting forth the
only permissible uses states that “[r]esidences” are not permitted.
For another example of residential development permissible under the initiative,
Sierra Club points to the provision that if a court determines that the absence of
residential uses effects an unconstitutional taking, one single-family home may be built
on each parcel, or each 20 acres of a parcel. We do not interpret a provision authorizing a
single home on 20 acres only after the property owner has gone to court and shown a
constitutional violation as being consistent with a Hillside Residential designation, where
“Hillside Residential” is specifically defined to allow considerably more housing.
As a fallback, Sierra Club argues that even a complete prohibition of residential
use on the property would not render the general plan internally inconsistent because the
Hillside Residential designation allows housing only on “developable portions of hillside
parcels below the 400-foot elevation.” (Italics added.) The general plan also recognizes
that in Hillside Residential areas, development must address such “key environmental
challenges and constraints” as “steep slopes and soil erosion.” This language means,
according to Sierra Club, that the general plan recognizes at least some land designated
Hillside Residential as not developable, and the initiative simply specifies which property
is not “developable.” Sierra Club contends this resolution is consistent with the general
plan’s provisions that the land use element establishes a “broad vision and framework”
for land use and locates “general land uses” in the City, while leaving to the City’s
zoning ordinance the task of “establish[ing] specific standards to regulate development.”
Again, we disagree. Except in the case of a judicially declared taking, the initiative flatly
forbids residential uses of any property within the initiative area, regardless of whether it
is otherwise “developable” or subject to environment constraints such as steep slopes or
soil erosion. At the same time, the initiative permits a variety of nonresidential uses,
some of which may include buildings—facilities for convalescence and hospice care, for
boarding and care of horses, or for the processing, packaging, storage, or sale of
agricultural produce. For those uses, the initiative includes restrictions limiting
development to what might be considered “developable lands,” e.g., prohibiting
development that would degrade wetlands, impair water quality or vegetation in a stream
corridor, affect special-status species, or place buildings on steep slopes or above the
400-foot elevation. In sum, the initiative does not mark the entire initiative area as not
“developable”; rather, it limits the development to specific non-residential uses.
Sierra Club contends the consistency requirement applies only to policies in the
plan, not to “maps which simply depict policies applied to specific land areas.” (Garat,
supra, 2 Cal.App.4th at p. 300.) In Garat, the floodplain map in the safety element of a
general plan showed a larger area subject to flooding than did the map in the open-space,
conservation, and scenic highway element. (Id. at p. 299 & fn. 30.) The appellate court
concluded the difference in the maps was not necessarily an inconsistency, because a
public entity might well decide to consider a greater area as subject to flooding for
purposes of planning for safety than for purposes of open space, conservation, and scenic
highway planning. (Id. at 299–300.) Garat does not stand for the proposition that one
element of a general plan may forbid a use that is expressly authorized for the same
property in another element of the plan. The open-space element as amended by the
initiative is inconsistent with the policy and the map regarding Hillside Residential
property in the land use element of the general plan.
Sierra Club also points out that a general plan may contain competing policies
(see, e.g., Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 112–114 (Cadiz)), and
urges us to apply the rule that we reconcile different parts of a general plan if reasonably
possible (No Oil, supra, 196 Cal.App.3d at p. 244). The court in Cadiz concluded a
landfill project was not necessarily inconsistent with a general plan that designated the
primary use of the applicable land designation as limited rural development, open space,
and agricultural activities, but that allowed compatible uses to coexist. (Cadiz, at pp.
113–114.) There was evidence in Cadiz that, with protective measures, a landfill was not
an incompatible use. (Id. at p. 114.)
Relying on these principles, Sierra Club points to various policies in the City’s
general plan with which it contends the initiative is consistent. Those policies include
protecting open space and natural resources, revitalizing urban areas, including the
Hilltop area, and identifying sites for additional housing. We have no quarrel with the
proposition that the initiative is consistent with those policies. But that does not change
the fact that it is facially inconsistent with the Residential Hillside designation. The only
way to harmonize the initiative with the land use element of the general plan is to ignore
either the property’s designation as Hillside Residential or the land use element’s
description of that classification.
B. The Precedence Clauses Do Not Resolve the Inconsistency
Sierra Club contends that two clauses in the initiative avoid any inconsistency with
the general plan. Section 19(a) of the initiative provides that, with exceptions not
relevant here, “application of any other provision of this General Plan is barred to the
extent that it is in conflict with this Initiative.” The effect of this clause is to elevate the
initiative’s amendments to the open-space element above conflicting provisions in the
land use element. But the law is clear that “[n]o element of the general plan may take
precedence over the provisions of other elements.” (Marblehead v. City of San Clemente
(1991) 226 Cal.App.3d 1504, 1510 (Marblehead).)
This principle was discussed in Sierra Club v. Board of Supervisors (1981) 126
Cal.App.3d 698 (Sierra Club). A county there had adopted the open-space and
conservation elements of its general plan, and the following year adopted the land use
element. Realizing that the maps that were part of each element were inconsistent in
some areas, and lacking time to resolve the inconsistencies, the county included the
following provision when it adopted the land use element: “ ‘If any conflict exists
between the adopted open space and conservation elements and this land use element,
this element should take precedence until the open space and conservation can be
reevaluated and amended, if necessary.’ ” (Id. at p. 703.) Although the issue was later
rendered moot, the appellate court considered whether this precedence clause was proper.
(Id. at pp. 707–708.) The court noted that the general plan guidelines adopted by the
Office of Planning and Research required all elements of a general plan to have equal
legal status: “ ‘For instance, the land use element and open-space element cannot contain
different land use intensity standards rationalized by statements such as “if in any
instance there is a conflict between the land use element and open-space element, the
land use element controls.” ’ ” (Id. at p. 708.) The court therefore held that the
precedence clause was void as prohibited by statute, including section 65300.5. (Ibid.)
Sierra Club seeks to distinguish the clause in Sierra Club on the ground it was
broader than the clause at issue here, expressly elevating one element of the general plan
above another. But the effect of section 19(a) is the same—that is, to cause the openspace
element, as amended by the initiative, to take precedence over the land use
element’s designation of the property for Hillside Residential use or its description of that
use. Sierra Club finds a distinction in the fact that the county in Sierra Club, unlike the
drafters of the initiative here, used the precedence clause to reconcile known
inconsistencies in the general plan. We see no reason why inconsistencies known or
unknown should be treated differently. Whatever the reason the drafters included the
precedence clause here, under Sierra Club it is invalid.
In a further effort to save the initiative, Sierra Club argues that section 6(a) of the
initiative prevents any inconsistency. That section provides: “Notwithstanding their
literal terms, the provisions of this Ordinance do not apply to the extent that courts
determine that if applied they would deprive a person of Constitutional rights or
privileges, or otherwise would be contrary to Federal or State law. These explicit
limitations on applicability are to make certain that the provisions do not infringe any
person’s legal rights or privileges, violate the law in any respect, or subject the City to
legal liability.” We fail to understand how this provision helps Sierra Club, since it
would cancel inconsistent portions of the initiative, rather than conform the rest of the
general plan to the initiative. But in any event, section 6(a) suffers from the same
infirmity as section 19(a), in that it, too, impermissibly subordinates one part of the
general plan to another. As a mechanism to resolve inconsistencies in the general plan,
section 6(a) is therefore invalid under Sierra Club.
In sum, we agree with the trial court that the initiative creates an impermissible
conflict within the City’s general plan by amending the open-space element to prohibit
residential development that the land use element continues to allow.
C. Definitions Do Not Create Additional Inconsistencies
Finally, we briefly address Gray1’s claim that the initiative creates additional
internal conflicts by using definitions of the terms “ ‘floor area’ ” and “ ‘wetlands’ ” that
are different from those in the preexisting general plan. The initiative expressly includes
porches in the calculation of a building’s floor area, while the existing general plan’s
definition of “Floor Area Ratio” simply refers to the “gross floor area of all buildings,”
without mentioning porches. As to the meaning of “wetlands,” the initiative defines
wetlands as “areas permanently or periodically covered or saturated by water where
hydrophytic vegetation is present under normal conditions, have soils that are primarily
hydric in nature, or are designated as wetlands by Federal or State law.” The existing
general plan defines wetlands as “[a] transitional area between terrestrial and aquatic
systems where the water table is usually at or near the surface or where the land is
covered by shallow water.” Using different definitions in different parts of the general
plan may be messy, but Gray1 has not shown that these definitions are inconsistent in any
substantial manner. (Concerned Citizens, supra, 166 Cal.App.3d at p. 97.) Gray1
accordingly fails to establish that on these additional points the amended general plan is
fatally inconsistent.
II. Remedy
The question of remedy remains. The trial court ruled that because of the
inconsistency, the initiative may not be given effect, and it ordered the City to vacate its
adoption of the initiative.
Sierra Club contends the court should instead have directed the City to correct the
inconsistency. It relies on section 65754, which provides in pertinent part: “In any
action brought to challenge the validity of the general plan of any city . . . or any
mandatory element thereof, if the court, in a final judgment in favor of the plaintiff or
petitioner, finds that the general plan or any mandatory element of the general plan does
not substantially comply with the requirements of Article 5 (commencing with Section
65300): [¶] (a) The city . . . shall bring its general plan or relevant mandatory element or
elements thereof into compliance with the requirements of Article 5 (commencing with
Section 65300) within 120 days.” We agree with Sierra Club that this provision controls.
Once the trial court found that the general plan, as amended, violates section 65300.5’s
requirement of internal consistency, it should have ordered “[t]he city” to “bring its
general plan . . . into compliance with” statutory requirements. (§ 65754.)
Gray1 contends section 65754 is inapplicable because the initiative violated state
law and was therefore void ab initio. It relies on Lesher, supra, 52 Cal.3d at p. 544,
which states, “A zoning ordinance that conflicts with a general plan is invalid at the time
it is passed.” But here, the initiative amends the general plan, not a zoning ordinance.
As we have explained, a general plan is the constitution for all future land use, and
subsidiary enactments, including zoning ordinances, must be consistent with the general
(City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, 1079 (Bushey); Orange
Citizens, supra, 2 Cal.5th at p. 153; § 65860, subd. (a).) Lesher does not stand for the
principle that an action that renders a general plan internally inconsistent is void ab initio.
In a somewhat different context, the court in Garat considered the reach of Lesher
on this point. A challenge was brought to two land use ordinances adopted by initiative;
the trial court concluded that a city’s general plan was internally inconsistent as a matter
of law, rendering consistency between the initiative measures and the general plan
impossible, and it declared the measures invalid. (Garat, supra, 2 Cal.App.4th at pp.
271, 273–274.) The appellate court reversed. In so doing, it considered whether the
proper remedy for a perceived invalidity in the city’s general plan was to invalidate the
measures. (Id. at pp. 302–304.) It answered that question in the negative, concluding
instead that “the primary judicial remedy” should be the one the Legislature prescribed
for inadequacy of a general plan, as set forth in section 65754. (Id. at p. 304.) The court

5 As to zoning ordinances, this rule is subject to an exception for charter cities,
which are not bound by state zoning law unless their charters or laws so provide.
(§ 65803; Garat, supra, 2 Cal.App.4th at p. 281.)
rejected the argument that Lesher supported invalidating the initiative, explaining,
“Lesher concerned a situation in which the validity of a zoning ordinance was challenged
on the ground that the ordinance was void ab initio because it conflicted at the time of its
adoption with a general law city’s general plan; it did not concern a situation . . . in which
the legal challenge is to the validity/adequacy of a general plan itself.” (Id. at p. 304,
fn. 34.) Lesher’s principle of preemption simply does not apply where the
inconsistencies are found within the same general plan.
The parties have drawn our attention to no case deciding whether a court may
direct a city to correct inconsistencies in its general plan when the inconsistency is
created by an initiative amending an existing plan. The court in Lesher expressly
declined to consider this issue. (Lesher, supra, 52 Cal.3d at p. 540.) But in the
circumstances before us, we believe such relief is available and appropriate. By its terms,
the initiative amended the general plan by adding 16 sections and by making other
amendments to the plan’s existing language in an effort to avoid inconsistency with
provisions of the general plan or state housing law. The intent of the initiative is clear,
and, with minor quibbles that we have rejected, Gray1 does not claim any deficiency in
the general plan other than the initiative’s failure to amend the land use element to reflect
the new limitations on development. We see no reason not to apply the legislatively
prescribed remedy of section 65754.
Gray1 contends this remedy is unavailable under Marblehead, supra, 226
Cal.App.3d 1504. The voters there passed an initiative declaring that before a city’s
general plan could be amended, the city would have to find that stringent transportation
and municipal service standards were met; it provided that the city’s general plan would
“ ‘be deemed to be amended to contain these concepts,’ ” and directed the city to revise
the text of the general plan to reflect the provisions of the initiative. (Id. at p. 1507.) The
appellate court concluded the measure did not directly amend the city’s general plan, but
rather, constituted “a resolution by the voters declaring that the city’s general plan should
be revised to reflect the ‘concepts’ expressed in the measure . . . . Which elements of the
general plan are affected and how the substantive terms of [the initiative] are to be
incorporated into these elements is unexplained.” (Id. at p. 1510.) Marblehead held that
a measure directing the city to amend the general plan is not within the electorate’s
initiative power. (Ibid.) Marblehead is inapposite. The initiative at issue here did not
merely express concepts and direct the City to amend the general plan to incorporate
them. Rather, it amended the general plan directly. In so doing, the initiative created an
inconsistency in the general plan, and section 65754 prescribes the remedy for that
problem. Nothing in Marblehead limits a court’s power to direct a public entity to
remedy a single inconsistency caused by an omission in an initiative.
Our high court considered an analogous issue in Bushey, supra, 5 Cal.5th 1068. In
Bushey, a city had amended its general plan to change the land use designation of a
vacant lot from “ ‘Industrial’ ” to “ ‘Commercial,’ ” anticipating a hotel would be
developed on the property. The city later approved an ordinance changing the parcel’s
zoning designation to “ ‘CG-General Commercial,’ ” which would allow for a hotel, and
a referendum was brought challenging the ordinance. (Id. at pp. 1076–1077.) The
question the court faced was “whether the people of a county or city may challenge by
referendum a zoning ordinance amendment that would bring the ordinance into
compliance with a change to the county’s or city’s general plan, even though such a
referendum would temporarily leave in place a zoning ordinance that does not comply
with the general plan.” (Id. at p. 1076.) The court concluded that such a referendum was
permissible, “at least where the local government has other means available to make the
zoning ordinance and general plan consistent.” (Ibid.) Those other means could include
rezoning the affected parcel to allow other forms of “commercial” development not
including a hotel, which would be consistent with the general plan and a successful
referendum. (Id. at p. 1090.) The court remanded the matter for the trial court to
determine whether this was feasible. If not, “the trial court may also address whether a
referendum can be invalidated where the City has the ability to amend the general plan in
order to conform the plan to the zoning designation that the referendum would leave in
place.” (Ibid., italics added.) While our high court did not resolve this final issue,
nothing in Bushey suggests it is improper to consider a city’s ability to amend its general
plan when fashioning a remedy for an initiative or referendum that creates an
inconsistency within a general plan.
Gray1 argues that the City cannot amend the ordinance without a vote of the
people, and that the court therefore cannot direct the City to amend it to eliminate the
inconsistency. The premise of Gray1’s argument is correct. An ordinance that is
proposed by initiative petition and adopted by the legislative body may not be “repealed
or amended except by a vote of the people, unless provision is otherwise made in the
original ordinance.” (Elec. Code, § 9217.) Here, the initiative itself provides that it may
be repealed or substantively amended only by a vote of the people. But although Gray1
is correct on this principle, that does not resolve the issue of whether the City can correct
the inconsistency with other actions that are within its discretion. The City might, for
example, amend the land use element of the general plan in a manner consistent with the
initiative, or might submit to the voters a measure rescinding or amending the initiative
so as to cure the inconsistency. As long as such options remain available, the City’s
inability to amend the ordinance without a vote of the people is no bar to applying section
In holding that general plans may be amended by initiative, our high court in
DeVita addressed the concern that an initiative amendment would prevent a county from
amending its general plan in the future to prevent obsolescence. The court dismissed that
concern, explaining that the public entity would be able to amend its general plan in ways
that did not conflict with the initiative amendment, or, if necessary to maintain an
adequate general plan, the public entity could propose an amendment to the electorate.
(DaVita, supra, 9 Cal.4th at p. 792.) Should a vote of the people be necessary, our high
court admonished, “[w]e should not presume . . . that the electorate will fail to do the
legally proper thing.” (DeVita, supra, 9 Cal.4th at pp. 792–793.) Similarly here, we will
not presume that the City or, if necessary, the voters will fail to take appropriate action to
correct the inconsistency.

Outcome: The judgment is reversed. On remand, the trial court shall issue a new writ of
mandate directing the City to cure the inconsistency in its general plan in a manner consistent with the views expressed in this opinion. Each party shall bear its own costs on appeal.

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