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HomeMy WebLinkAbout1989-08-24; City Council; 10217; Amicus Brief.- dB# /01&1-7 TITLE: AMICUS CURIAE SUPPORT FOR CITY OF LA QUINTA HTG.8/24 i 8 9 DEPT. CA - A - HD'm CITY AfTv CITY MGR. J - ITEM EXPLANATXOJ After adopting its first comprehensive general plan, certain zoning designations in the City of La Quinta became inconsistent. One inconsistency was a property owned by La Quinta Dunes which had a general plan density of R-3 and was zoned R-1. Eighteen months iater ths property owner asked for a rezoning to the higher density. At the public hearing there were substantial neigKborhood ob2ections. The city council denied the rezoning and directed staff to study the land uses for the property and other similar properties in order to determine appropriate densities and, if necessary, make any required general plan amendments. The property owner sued and the trial court ordered the city council to re- the property to the higher density and prohibited the city from making any future general plan changes on the property. Merits aside, that is an unprecedented intrusion by the trial court into the legislative discretion of a city council. The preservation of single family neighborhoods is a legitimate purpose of government. It is for the city council to determine how to eliminate the general plan - zoning inconsistency. Carlsbad, in the past, has deait with similar situations on several occasions and resolved them by responding to the neighborhood in the same way as the council in La Quinta. The amicus brief on behalf of interested California cities by James Longtin is attached. If the Council concurs, your action is to, by motion, take the recommended action. EXHIBIT Brief of Amici Curiae (California Cities) .- A DRAFT IN THE COURT OF' APPEAL STATE OF CALIFORNIP. FOURTH APPELLATE DISTRICT DIVISION TWO LA QUINTA DUNES, a California ) CASE NO. E005606 limited partnership, et al., ) ) Plaintiffs/ 1 Respondents , 1 1 V. 1 1 CITY OF LA QUINTA, etc., 1 et al.r 1 1 Appellants/ 1 Defendants. 1 RIVERSIDE COUNTY SUPERIOR COURT CASE NO. INDIO 52783 BRIEF OF AMICI CURIAE (CALIFORNIA CITIES) JAMES LONGTIN Attorney for Amici Curiae - -.. - TABLE OF CONTENTS Page No. A. CONCERN OF CALIFORNIA CITIF" B. THE MANDATE JUDGMENT EXCEEDS TIIE AUTHORITY OF THE COURT 1. The Superior Court Mandate Judgment Commands City to Adopt Specific Zoning and Prohibits City from Amending its General Plan 2. The Mandate Judgment Infringes upon the Discretionary Decision Making Authority of City by Improperly Commanding City to Adopt Rezoning to a Specific Higher Density Zone Designation 3. The Mandate Judgment Infringes Upon the Discretionary Decision Making Authority of City by Prohibiting Future Amendments to the General Plan C. ADDITIONAL PRINCIPLES OF LAW APPLICABLE TO MUNICIPAL LAND USE CONTROL PRECLUDE SUCH JUDICIAL INTERFERENCE WITH THE DISCRETIONARY DECISION MAKING AUTHORITY 1. Local Land Use Power is Derived Directly from the Constitution. It is the Foundation of Planning and Zcning 2. State Statutory Enactmer' Such as the Consistency Requirement, are Limitations to the Broad Constitutional Police Power and Should be Strictly Construed 3. The Doctrine of Separation of Powers Precludes Courts from Acting as Super Planning Commissions or Legislatures 4. If the Court Finds the Existing City Inaction to be Legally Unsatisfactory, It Should Allow the City to Correct the Problem D. THE GENERAL PLAN AND ZONING DESIGNATIONS ON THE SUBJECT PROPERTY ARE NOW CONSISTENT. THE ISSUES OF THIS APPEAL ARE MOOT E. CONCLUSION A. CONCERN OF CALIFORNIA CITIES. Amici are various cities located throughout the State of California. Although such cities are diverse and varied in size, population, topography, economics, and community goals, they all share a compelling interest in legal issues that may significantly affect the power of cities to carry out their mandated responsibilities in the field of lapd use planning and regulation. In this case, the trial court has taken a simple and narrow legislative mandate - that cities must be consistent in their planning and zoning er?.actments - as an excuse for an unprecedented intrusion into a city's prerogative to determine what pattern and densities of land use are best suited to fit the needs of its community and citizens. Moreover, the order also precludes the city from future reshaping of its planning and zoning designations to respond to changing circumstances ai23 outdated earlier assumptions. The basic factual situation in the City of La Quinta is simple and not uncommon in many cities. Following adoption of its first comprehensive general plan, certain zoning designations became inconsistent with the land use element. One inconsistency wss the Dunes property, which designation then had a general plan density designation of 8-16 units per acre (R-3) and a zoning density designation of 2-4 units per acre (R-1). Eighteen months later, a land owner (Dunes) requested a rezoning to the higher density to accommodate a proposed apartment project. This requested rezoning was one of several ways to achieve general plan density consistency. During the rezoning process, neighbors objected to the higher density. The city council responded by refusing the rezoning and -2- conducting a land use study of the subject property and other similar properties in order to determine appropriate densities and thereafter make the necessary general plan and zoning designations to achieve consistency. The property owner sued; and the trial court issued a mandate judgment (1) commanding the city to rezone the subject property to a specific high density zone designation: and (2) prohibiting future general plan density amendments on the property. Thus, the court, in effect, usurped to itself the legislative judgment regarding the appropriate density for this parcel under the guise of ordering planning and zoning zcnsistency. California cities are greatly concerned with the breadth and scope of this mandate judgment. If upheld, it would be an unprecedented invasion of the constitutional police power of cities to plan and regulate land use for the welfare of the citizens of the community. The state constitutional and statutory scheme of land use planning and regulation places heavy burdens on cities, charging them with the responsibility for considering and coordinating many competing considerations and requirements. With regard to the general plan alone, which is the subject of this action, Gov. Code 65302, mandates a city to consider (1) the distribution cf various land uses within the community: (2) the circulation of traffic; (3) conservation of natural resources: (4) provision for open space; (5) elimination of noise problems related to roads. transit systems, and local industry; and (6) provide for community safety relative to natural and man-made disasters. In addition, cities must comply with a myriad of important state and federal laws, such as the Subdivision Map Act and the California Environmental Quality Act. -3- - In order to properly execute such massive responsib-,ities in the control cf land use, cities require significant discretionary decision making authority, especically relative to the general plan and zoning goals of controlling use and density of property. California courts recognize that city government is the proper entity to make the value judgments and weigh the complex needs of the citizens. And California courts further recognize that, unless the city is acting unconstitutionally or well outside the legislative planning and zoning framework, courts should defer to the local legislative determination and take a "hands-off" approach. What has happened in this case is an unprecedented and invasive encroachment upon the discretionary land use authority of a city. The trtal court manclate judgment commands city to adopt rezoning to a specific zone designation which provides for higher density than determined by the City itself, following a lengthy professional land use study, public hearings, and decision by the planning commission and the city council. Worse than that, the mandate judgment prohibits the City from making any general plan amendments relative to density on the subject property, now and in the future. Thus, no matter what the future may hold relative to changed circumstances involving land use patterns and municipal goals, City's hands are forever tied relative to the density of development on the subject property. Cities of California recognize they are not always perfect and completely efficient in performing land use planning and regulation functions. Citizen needs and desires, local politics, and city budgets greatly affect the land use function. But perfection is not the measure by which a City should be judged. Rather, it is -4- the good faith effort of the City in executing the planning and zoning function. Many cities, including La Quinta, are swamped with applications for development. In addition to responding to these requests, they must also plan for the welfare of the entire comnunity. Are the citizens to be punished for a two-year delay in bringing zoning consistent with the general plan on a parcel of property? Are they to be stripped of all future planning and control of this 2roperty relative to its use density? Such judicial action is gross overkill. The appropriate remedy here is to allow the City to carry out its statutory obligation to plan and zone this parcel to best meet the needs of its citizens; but to do so within a court designated time period. The City should not be forced to accept a high density apartment project that is not appropriate for the parcel; just because the City had designated the parcel high density at an earlier date. Planning and zoning is a dynamic ongoing process. It is axiomatic that, as community land use needs, patterns and goals change, the general plan and zoning Of course not. must likewise change. B. THE MANDATE JUDGMENT EXCEEDS THE AUTBORITY OF THE Corn. 1. The Superior Court Mandate Judgment CommandsCityto Adopt Specific Zoning and Prohibits City from Amending its General Plan. On June 1, 1988, the Superior Court issued its judgment for Dunes, ordering -5- - "I. Th - a Peremptory Writ of indate issue commanding Respondents to forthwith adopt an Ordinance No. 113A, approving change of zone 87-026, so as to effect a change in zone to R-3, (8 to 16 units per acre); "2. That a Peremptory Writ of Prohibition issue prohibiting Respondents from enacting any further amendment to the land use element of the La Quinta General Plan with respect to Petitioner's property, namely as to the density, i.e., no less than 8 or more than 16 units per acre (R-3) ." 2. The Mandate Judgment Infringes upon the Discretionary Decision Making Authority of City by Improperly Commanding City to Adopt Rezoning to a Specific Higher Density Zone Designation. Amici believe that all of the City's actions relative to the subject property, including the general plan amendment and refusal to rezone, were proper, reasonable, and not in violation of Gov. Code 65860. That is, when the R-1 zoning became inconsistent with the general plan by reason of the amendment of the plan in December 1985, and brought to the attention of City in 1987, the consistency problem was cured in a reasonable manner and within a reasonable time thereafter. The collective experience of Amici is that zoning inconsistencies, density problems, and other matters frequently first come to the attention of a city by the expression of concerns of property owners and neighbors. That is the case here. Following City's first real knowledge of the problem, the City prudently conducted a density study, which was completed within a reasonable period of time. The City then immediately conducted the necesszry public hearings and adopted the plan amendments. But even assuming that the court could properly find that the City breached its duty in bringing about consistency between the zoning ordinance and the general plan within a reasonable time (mv. Code 65860(c)), the Superior Court does not have the power to command -6- City to act in a specific manner (adopt rezoning ordinance 113A so as to affect a change of zone to R-3). Such a mandate orc?er infringes upon the discretionary decision making authority of the City's legislative body. In other words, the maximum order the court could make a against the City pursuant to Gov. Code 65860 is to order the City to bring about zoning consistent with the general plan, within a designated period of time. The court cannot conmand the City as to how and in what manner to effect such consistency. And it certainly cannot preclude the City from conducting a land vse study and amending the general plan designation relative to the property. How the City effects its zoning consistency is within the discretion of the City and its decision may be based upon mamy and various tsctors.1 California case law clearly holds that judicial mandamus cannot be used to control the discretion of a governmental agency. This is especially true in land use planning and zoning. See Tandy v. City of Oakland (1962) 208 CA3d 609, 25 CR 429 (court without power to compel city council to adopt ordinance rezoning property to a 1. The factors involved in land use decision making are t3o numerous to even attempt to mention, especially relative tc determining the proper residentialdensity. Besides the myriad state mandated responsibilities, some of which were previously mentioned (General Plan Law, Subdivision Map Act, and California Environmental Quality Act) , the actual decision making process involves professional planning criteria together with concerns of the neighbors and geneial citizenry. This case presents a common example of how new information and changed needs were brought to the attention of the city council by neighboring opponents of the requested high density rezoning. The concerns were legitimate, to wit: adjacent low density uses, no lonaer a need for a "buffer area" separating low density from potential commercial, traffic concerns and environmental concerns. The city council acted appropriately by ordering a land use study. See Guinnane v. San Francis= Planninq Commission (1989) 209 CA3d 732, 743, 257 CR 742, 749. -7 - specific designation, which determination is solely with the discretion of the municipal legislative body) and Fontana Unified School Dist. v. City of Rialto (1985) 173 CA3d 725, 734, 219 CR 254 (mazdamus not proper to require city council to impose school fee on new development, in a particular amount: it can only be used to compel city council to exercise its discretion to fix amount of fee, and, having done so, to perform the ministerial act of imposing fee prior to issuance of building permit). 3. The Mandate Judgment Infringes Upon the Discretionary Decision Making Arrthority of City by Prohibiting Future Amendments to the General Plan. The mandatz judgment not only improperly directs the City to adopt a s~-tcific ordinance effecting a zone change to a specific high density designation, (which order is not proper under Tandy and Fontam, above), the order goes much further. It prohibits the City from enacting any further amendment to the land use element of the general plan with respect to the subject property. Thus, the order completely removes all discretionary decision-making power of the City with regard to this property, now and in the future. Consider how this prohikition against further land we amendment of the subject property ties the hands of the City with respect to its most important land use function - formulation and amendment of the genera1 plan. The general plan sits atop the heirarchy of all land Ese regulations. It is the constitution for the physical development of the City. Neigbborhocd Action GrouE v. County of Calaveras (1984) 156 CA3d 1176, 1183, 203 CR 401. Californiz law recognizes the need for continuing study an2 updating of the general plan. It recognizes that cities are dynamic and in -8- motion and when circumstances change, general plan changes will be necessary. See Karlson v. City of Camarillo (1980) 100 CA3d 789, 801, 161 CR 260. The General Flan Guidelines2 (June 1987) issued by the State Governors Office of Planning & Research, clearly contemplate, and even demacd, that local government agencies must have the authority to continually update the general plan. The Guidelines state, at page 14, "The general plan should be reviewed regularly regardless of its horizon, and revised as new information becomes available and as community needs and values change.. . "State law provides that each mandatory general plan element may be amended as often as four times Fer year. However, except for the housing element, state law does not establish a mandatory time schedule for comprehensive updates. A jurisdiction is expected to mske ruming changes to its general plan as they are necessary. As a general rule, major general plan revision should occur at least every four to five years." (Exhibit 1). It is clear that general plans must be amended as City's needs and goals change, new information and techniques become available, and the development of the City so dictates. All property owners own and hold property subject to such planning and land use authority in cities. The only limitatiorr on the exercise of such authority, is when the property owner has a vested right to a particular land use/zoning designation. Such vested rights are obtained either through contracts (such as a development agreement) or through the obtaining of a building permit and subs.:antial expenditures in reliance thereon (classic Avco vested Light). This issue is briefed 2. Although the guidelines are advisory only, they provide assistance in determininq qeneral plan issues. See Gov. Code 65040.2 and Twain Harte Homeowners Assn. v. County of Toulunne, (1982) 138 CA3d 664, 702, 188 CR 233. -9 - by City in Appellants' Opening Brief and will not De discussed further at this point. Suffice it to say, Dunes has not produced a scintilla of evidence demonstrating any type of vested right relative to the subject property. 5:7 the order of this Superior Court, the City is precluded from making any further general plan changes affecting the subject p:operty, no matter what may happen in the Euture relative to land use in the City of La Quinta. Such unprecedentzd judicial intervention is contrzry to both the letter and spirit of state planning and land use law. C. ADDITIOHAL PRINCIPLES OF LAW APPLICABLE TO MUt?ICIPAL LAND USE COITROL PRECLUDE SUCH JUDICIAL INTERFERENCE WITB TBE DISCRETfUNARY DECISION MAKING AUTHORITY. 1. -_I_ Local Land Use Power is Derived Directly from the Constitution. It is the Foundation of Planning and Zoning. Local contra1 is the key to the effectiveness of planning and zoning because it provides the most sensi':ive response to people's needs and to the use of land. City plznning staff and officials have the most intimati? knowledge of Existing pcoblems, available resources and fiscal constraints within their respective communities. They are best able to make planning and zoning decisions which properly consider the welfare of the entire community. This discretionary police power to plan and zone is so important that it is contained in the California Constitution (Article XI, Section 7); and the courts have liberally construed t3is power, especially in the field of land use regulations. Typical of this deferential judicial attitude is the following statement by the -10- Supreme Court in Candid Enterprises, Inc. v. Grossman Union High School District (1985) 33 Cal.3d 878, 886, 218 CR 303. "Under the police power granted by the Constitution, counties acd cities have plenary authority to govern, subject only to the limitation that they exercise this pQwer within their territorial limits and subordinate to state 1,w. Cal.Const., Art. XI, 57. Apart from this limitation, the police power of a county of city under this provision is as broad as the police power exercisable by the legislature itseif ." To the same effect, see Nash v. City of Santa Monica (1984) 37 Cal.3d 97, 207 CR 255 and Birkenfield v. City of i3erkelei (1976) 17 Cal.3d 129, 140, 1.30 CR 465. 2. State Statutory Enactmefits, Such as the Consisten9 Requirement, are Limitations to the Broad Constitutional Police Power and Shduld be Strictly Construed. In this case, the mandate judgment construes Gov. Code 65860, which requites zoning ordinances to be consistent with the general plan, in a manner which invzlidate the density designation placed on the property by City, substituting the higher density designation ordered by the Court. The construction placed upon this statutory enactment (Gov. Code 65860) is too broad and is too invasive of the municipal land use police power granted by the Constitutioc. The land use power is not derived fion the state legislative scheme for planning and zoning. Rather, it is derived directly from the Constitution. See Scrutton v. County of Sacramento (1969) 275 CAi.3 412, 417, 79 CR 872 and Wesley Investment Co. v. County of Alameda (1984) 151 CA3d 672, 678, 198 CR 872. In enacting the planning and zoning provisions (Gov. Code 65000-65907) , the legislature intbnded to provide only a minimum of limitation over local zoning in ordez that counties and cities may exercise the maxinum degree of control over local zoning matters. (Scrutton, -11- P- 417 n. 2 and Wesley, p. 678). In their intrinsic character and by expressed declaration, state laws on county and city planning and land use regulation are designed as standardizing limitations over local practices, not as specific grants of authority to legislate. (Scrutton, p. 417). As such, they must be narrowly construed to allow local government the latitude to exercise their broad grant of constitutional authority. (see generally Scrutton, p.412). 3, The Doctrine of Separation of Powers Precludes Courts from Acting as Super Planning Commissions or Legislatures. The constitutional framework established by the founding fathers of this country and of this state provides a system of checks and balances. It is a fundamental principle of our constitutional system that the governmental powers are divided among the three departments of government, to wit: the legislature, executive, and judicial; and that each of these is separate from the other. The California judiciary itself has repeatedly explained this doctrine and the proper role of. the court in land use decision making. The Su?reme Court stated, for example, "We must keep in mind the fact that the courts are examining the act of a coordinate branch of the government -- the legislative -- in a field in which it has paramount authority, and not reviewing the decision of a lower tribunal or of a fact finding body. Courts have nothing to do with the wisdom of laws or regulations, and the legislative power must be upheld unless manifestly abused so as to infringe on constitutionalguaranties. The duty to uphold the legislature is as much the duty of appellate courts as it is of trial courts, and under the doctrine ofseparationofpcwers neither the trial nor the appellate cG:irts are authorized to 'review' legislative determinations. The only function of the courts is to determine whether the exercise of legislative cower has exceeded constitutional limitations." (Lockhard v. City of Los Angelec (1949) 33 Cal.2d 453, 461, 202 P.2d 58). -12- The reason for the clear separation of powers in the area of land use control is basic and practical. Courts are not equipped to enact planning and zoning or pass upon the wisdom of the city council's discretionary determinations. The planning and implementation of land use regulations involves a balancing of many varied factors in order to determine which plan will have the most beneficial effect on the community. The courts have stated this many times and in different ways. For example: "The complex economic, political and social factors involved in land use planning are compelling evidence that resolution of the important housing and environmental issues raised here, is the domain of the legislature." Date Line Builders, Inc. vi City of Sant Rosa (1983) 146 CA3d 520, 530, 144 CR 258. Even if courts were somehow empowered to legislate, they "are ill equipped to determined whether the language use3 in a local plan is adequate to achieve the broad general goals of the legislature." Bownds v. City of Giendale (1981) 11.3 CA3d 875, 884. I If the Court Finds the Existing City Inaction to be Legally Unsatisfactory, It Should Allow the City to Correct the Problem. Even if the court should determine that the City has violated the 4, consistency requirement of Gov. Code 65860, the remedy is - not to order a specific high density zoning designation for the property and to preclude the City from doing any further density planning as mandated by the general plan. Such action constitutes judicial overkill and is unconstitutionally invasive into the City's land use decision making authority. Courts have continuously shown judicial reluctance to order a city to perform a specific act when a city's failure was non-action (failure to bring about zoning ccnsistency). As stated by the appellate court in City Council of -13- City of Santa Barbara v. Superior Court '(1960) 179 CA2d 389, 395, 3 CR 796: "It is within the legitimate power of the judiciary to declare the actions of the Legislature unconstitutional, where that action exceeds the limits of the supreme law; but the courts have no means and no power, toavoid the effects of non-action. The Legislative being the creative element in the system, its action cannot be quickened by the other departments." What the Court should properly do in this case is order the City to correct the zoning inconsistency forthwith (which the City has now completed). That is, when a court finds existing actions to be legally unsatisfactory, the appropriate judicial remedy is to order the City to correct the problem. But the City must be allowed to correct its land use problems in the manner it deems approixiate in the best interest of its citizenry. Do THE GhJ3RAL PLAN AND ZONING DESIGNATIONS ON THE SUBJECT PROPERTY ARE NOW CONSISTENT. THE ISSUES OF THIS ApPJ3AL ARE ME. Amici urge this court to take judicial notice of subsequent City enactments which render the legal issues in this case moot. That is, City's recent general plan land use element azendments have now achieved consistency. Strong public policy recommends against courts issuing orders contrary to presently existing city legislative provisions. Plaintiffs' petition for Writ of Mandate was brought pursuant to Gov. Code 6586U(b) to enforce cornpliance with the requirement that City zoning ordinances shall be consistent with the general 3. Amici are aware that this court previously denied City's Motion to Augment the Appellate Record by adding the recently adopted resolution achieving consistency. Amici requests the court to take judicial notice of the adoption of such resolution as a "public entity legislative enactment," pursuant to Evidence Code 452(b). -14- plan. CT, 7-9. In January 1988 the city council initiated a land use study of all medium and high density residential areas within the city. Included within the study was the proper land use designation for the subject property. Following completion of the study, and following public hearings before the planning commission and city cogncil, in February 1989 the city council adopted resolution 89-022 amending the general plan, land use element, map and text. Included within such amendment, insofar as the subject property is concerned, was a change of the general plan designation from high density to low decsity residential. Yith the adoption of such resolution, the general’ plan and the zoning are now consistent. Both the general plan designation of low density residential and the R-1 zone provide residential densities of 2-4 units per acre. Inasmuch as the general planand zoningdesignations are now consistent, all issues on this appeal are moot. Where problems have been corrected (consistency achieved) a sensible and sensitive approach has been taken by numerous appellate courts. Such courts recognize the right of a city to amend a regulation, even after trial and during appeal, thereby requiring judicial reconsideration in light of the new regulation. Such reconsideration frequently results in mooting the issue. One case is particularly on point. In Sierra Club v. Board of Supervisors (1981) 126 CA3d 698, 704, 179 CR 261, the court considered the isstie of inconsistencies between the open space and land use elements of the general plan. During litigation, and while the case was on appeal, the city amended its generalplaneliminatingtheobjectional inconsistencies. The court held that the zoning/general plan issues were therefore moot. (p. 707). Tbe court stated, at page 704, -15- "However, the central issue on this appeal is moot as it pertains to the real party in interest, Ming Center, and Zoning Ordinance No. 2523. The adoption of the Rosedale plan in 1980 removed the precedence clause from the land use element covering that area without which this dispute would never have occurred. Furthermore, the new map of the Rosedale plan area removed inconsistencies between open space-conservation and land use. The courts of this state have held that where a disputed statute, order or ordinance is repealed before an appeal is concluded, the matter is moot. (citations omitted)." Many other land use cases have held that either the entire litigation, or issues therein, were mooted by the enactment of subsequent amending regulations. See Kash Znterprises, Inc. v. City af LOS Angeles (1977) 19 C3d 294, 306 (note 6), 138 CR 53 (a challenged newsrack ordinance amended while on appeal, was considered by the court over the earlier version); City of Whittier v. Walnut Properties, Inc. (1983) 49 CA3d 633, 640, 197 CR 127 (recent version of an adult business zoning ordinance, amended while on appeal, wzs considered by the court over the earlier version in determining constitutionality) ; Building Industry Assn. v. City of Oxnard (1985) 40 C3d 1, 227 CR 391 (a new version of a growth requirements capital fee ordinance, amended during litigation to make the impact more equitable, was considered by the Supreme Court): Selby Realty Co. v. City of San Buenaventura (1973) 10 C3d 110, 125, 109 CR 799 (general plan amendments in existence at the time of final decision rather than at the time of the challenged action are to be consic?ered, the purpose ioing to prevent a court from issuing orders contrary to presently existing legislative provisions) ; and Davis v. Superior Ccurt (1985) 169 CA3d 1054, 215 CR 72i (where an action was filed challenging an existing housing element of the general plan, which was totally revised by adoption of amendments t.hree years later, -16- the court determined the validity by addressing the original claims in relation to the later revised amendments!. It is not uncommon for the appellate courts to remove cases from the court calendar, pending the adoption oE new regulations which may render the lawsui, moot. For exaxple, Division S of the First Appellate District recently issued an interim order removing a general plan consistency case from its calendar pending the adoption of a new general plan by the City of Walnut Creek. This action was taken in anticipation that the adoption of the new general plan would render the lawsuit moot by removing any alleged inconsistencies. See Order of 8/2/88 in Lesher Communications, Inc. v. City of Walnut Creek (1st Dist., Div. 5, No. A0378651, a copy of which is attached as Exhibit 2. E. CONCLUSION. Amici urge this Court to reverse the mandate judgment of the trial court, for many reasons. First, the judgment infringes upon the discretionarydecisionmaking authorityofcityty (a) improperly commanding City to adopt rezoning to a specific higher density zoce designation; and (b) improperly prohibiting future density amendments to the general plan for the subject property. Additionally, established principles of law, applicable to municipal land use control, preclude such judicial interfererice with a city's discretionary decision making authority. For exaqle: (1) The land use police power, which is the foundation of planning and zoning, is derived directly from the Constitution. State statutDry enactments, such as the consistency requirement, are limitations on the broad constitutional power and should be strictly construed; and (2) The doctrine of separation of powers precludes - 17- the court from acting as "super planner" for the City. If the court finds the existing inaction (failure to bring about zoning consistency) legally unsatisfactory, the remedy is to allow the City to correct its plan, not to do the planning for the City. In addition to the above, this Court is urged to order the issues of this appeai moot because the City has recently adopted a general plan amendment which achieves zoning consistency pursuant to Gov. Code 65302. LAW OFFICES OF JAMES LONGTIN By : JAMES LONGTIN Attorney for Amici Curiae -18- wld. pmtrcr lted to land use law reply to: AW OFFICES OF 373 West Channel Road Santa Monica, CA 90402 JAMES LONGTIN A PROFESSIONAL CORPORATION August 10, 1989 To: Selected City Attorneys Re: City of La Quinta Amici Brief (800) 345-0899 statewidettoll free AUf 14 1989 We need your help. Riverside County Superior Court has issued a mandate judgment against the City of La Quinta (1) commanding the City to adopt a specific ordinance rezoning a parcei of land to a higher density than that desired by the City; and C2) prohibiting the City from making any future general plan density amendments relative to the property. This judgment cane out of a case involving the City's two year delay in bringing about zoning consistency with its general plan. No vested rights are involved I believe this judgment constitutes an unprecendented invasion into the City's planning and zoning discretionary decision making powers. The case is now on appeal. The Legal Advocacy Committee of the City Attorneys Department has reviewed this case and reconmends Amicus I will be writing an Amicus brief for joining cities. Enclosed is the proposed draft. If you agree with our position and wish to show your support, please advise me immediately, by phone or letter, so that we may include your name on the brief. That is all we need. However, if any of you have suggestions or experience with similar issues, your comments are appreciated. support . Yours truly, 4P- MES LONGTIN JL : 11 P.S. Sorry for this form letter. But time is short and the budget is low. Thanks for understanding. August 31, 1989 Governor George Deukmejian State Capi to1 Sacramento, CA 95814 AB 2019 (AYALA) - VETO The City of Carlsbad is urgently requesting your veto on Assembly Bill 2019. This bill would enact penalties if public records are not made available upon request, or within 10 days. We are opposed to the assessment of a $25 per day fine when ev.3ry effort is made to fulfill each request for public records in our city. Cirzumstances do arise, however, which could make this penalty unreasonablk if a great deal of research is required, or if the records must be retrieved from external storage facilities. Existing law is an adequate .incentive to provide the public records as requested within the 10-day authorized period. A $25 per day fine will not improve our ability to provide pub1 ic r xcrds promptly, but could negatively impact the funds available for additional staffing. We disapprove of the philosophy to fine local agencies in hopes of speedl'tg up the process. We always make a conscientious effort to satisfy the requests of our citizens. And we believe the priorities for a city clerk are better determined at the local level than by the State. Please veto AB 2019, which is not in the best interest of local government agencies. UDE A. 'BUD' LEWIS Mayor kes : pg k c: Senator William Craven Assembly Member Robert Frazee League of California Cities City Clerk 1200 Carisbad Village Drive - Carlsbad, California 92008-1989 - (619) 434-2830