City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies

by Sheppard Mullin Richter & Hampton LLP
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Friends of Aviara v. City of Carlsbad (November 1, 2012, Case No. D060167)

[author: Kyndra Casper]

Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the City’s revision of its housing element. The appellate court interpreted Government Code section 65583 to create an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.

The City was required by Government Code section 65588 to revise the housing element of its general plan and in particular adopt provisions which fulfill the City's obligation to provide low cost housing in the region. The City adopted the revision and also certified a mitigated negative declaration (MND) because it found the revision would not have a substantial environmental impact. Besides identifying the inventory of sites that could accommodate the City’s assigned share of the region’s low cost housing needs, the revision also identified several amendments to the general plan’s land use element which would be necessary to permit development of affordable housing on the identified sites.

Friends of Aviara filed a writ of mandate challenging the City’s adoption of the housing element revision, alleging the MND violated CEQA and the revision impermissibly created inconsistency in the general plan. The trial court denied the CEQA claim, found that the revision created an conflict between the housing element and the land use element of the general plan, and issued a writ of mandate directing the City to adopt a timeline for the proposed amendments to the land use element. Friends of Aviara appealed, contending that notwithstanding a timeline for adoption of changes to the general plan, the revision to the housing element created unlawful inconsistencies in the general plan, and therefore the trial court should have issued a writ requiring that the City rescind its adoption of the revision.

The appellate court’s determination focused on Government Code section 65583, subdivision (c)(7), which requires a housing element to include “an identification of the agencies and officials responsible for the implementation of the various actions and the means by which consistency will be achieved with other general plan elements and community goals.” (Gov. Code, § 65583, subd. (c)(7), italics added). The court concluded that although consistency is required, the Legislature’s use of the future tense in the statute demonstrated a “legislative preference that municipalities promptly adopt housing plans which meet their numerical housing obligations even at the cost of creating temporary inconsistency in general plans.” As such, the appellate court held that the trial court acted properly to require the City to adopt a timeline for the amendments to the land use element and was not required to order the City to rescind its adoption of the housing element revision and wait for the land use element to be amended before fulfilling its housing obligations.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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