Orange Citizens for Parks and Recreation v. Superior Court











Filed 3/8/17 Orange Citizens for Parks and Recreation v. Superior Court CA4/3
On remand







NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ORANGE CITIZENS FOR PARKS AND RECREATION et al.,

Petitioners,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

MILAN REI IV LLC et al.,

Real Parties in Interest.



G047013





ORANGE CITIZENS FOR PARKS AND RECREATION et al.,

Plaintiffs and Appellants,

v.

MILAN REI IV LLC et al.,

Defendants and Respondents.



G047219

(Super. Ct. No. 30-2011-00494437)

O P I N I O N
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Robert J. Moss, Judge. Petition granted. Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Reversed.
Shute, Mihaly & Weinberger, Rachel B. Hooper, Robert S. Perlmutter, Susannah T. French; and Daniel P. Selmi for Petitioners, Plaintiffs, and Appellants Orange Citizens for Parks and Recreation and Orange Park Acres.
Woodruff, Spradlin & Smart and David A. 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.
Nicholas S. Chrisos, County Counsel and Leon J. Page, Deputy County Counsel for Real Party in Interest, Defendant, and Respondent Neal Kelley, Orange County Registrar of Voters.

* * *

Milan REI IV, LLC (Milan) is the owner of 51 acres of land (the Property) in the Orange Park Acres neighborhood of the City of Orange (the City). Between 1968 and 2006, the Property featured a nine-hole golf course and other recreational facilities. In 2007, Milan applied to the City to develop a residential subdivision on the golf course portion of the Property. Dubbed “Ridgeline Equestrian Estates,” the proposed development consisted of 39 homes, each built on a one-acre lot, plus various equestrian amenities (the Project).
The City of Orange City Council ultimately approved the Project in 2011. In connection therewith, the City Council adopted a resolution 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.
The petitioners, plaintiffs and appellants,[1] whom we shall refer to collectively as Orange Citizens, assert that the referendum essentially undid the City Council’s approval of the Project. Orange Citizens’ argument is straightforward: (1) any proposed development must be consistent with a municipality’s general plan; (2) the Project was inconsistent with the City’s general plan in 2010, as reflected by the Policy Map designation of the 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 was the City Council’s attempt to satisfy this necessary condition, failed at the ballot box. (See Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765, 783 [development agreement voided because project approval was inconsistent with general plan as it existed before a general plan amendment, which was made ineffective by referendum].)
Milan, the City, and the City Council contend that the City’s general plan since 1973 has always allowed low density residential development on the Property. As repeatedly found by the City Council in connection with its approval of 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 Amendment and notwithstanding the “Open Space” designation on the Policy Map. The General Plan Amendment simply corrected errors on the Policy Map (and in other documents). Regardless of whether these errors were corrected, the Project was consistent with the City’s general plan. The trial court agreed with this position.
We originally concluded the City Council acted reasonably in making its consistency findings, and we accordingly agreed with the trial court’s orderthat denied Orange Citizens’ petition for writ of mandate to set aside Project approval and related acts of the City Council. Accordingly, we denied Orange Citizens’ petition for writ of mandate in this court. We also reversed the order issuing a writ of mandate commanding the City to remove the referendum from the ballot, a portion of judgment already mooted by our previous stay of the trial court’s writ of mandate. (Orange Citizens for Parks & Recreation v. Superior Court (2013) 217 Cal.App.4th 1005, review granted Oct. 39, 2013 S212800.)
The California Supreme Court granted review and addressed that portion of our judgment which had affirmed the trial court’s orderdenying Orange Citizen’s petition for writ of mandate to set aside the Project approval and related acts of the City Council. The Supreme Court has now reversed our judgment on the issue of Project approval for reasons explained in Orange Citizens for Parks & Recreation v. SuperiorCourt (2016) 2 Cal.5th 141. Our review of the California Supreme Court’s opinion discloses that the trial court’s order must be reversed in its entirety and the only remaining issue is the award of costs. We therefore grant Orange Citizen’s petition for writ of mandate in this court and otherwise reverse the order of the trial court.

DISPOSITION

The trial court’s order of May 7, 2012 is reversed. Let a peremptory writ of mandate issue ordering respondent trial court to vacate its May 7, 2012 order, and to enter a new order granting the relief sought by Orange Citizens’ petition for writ of mandate, filed in the trial court on October 5, 2011.
Petitioners shall recover their costs incurred in this original proceeding and its related appeal.



IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.



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[1] 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 incorporated association of citizens formed to protect the rural character of Orange Park Acres.