State Supreme Court hears long-awaited Ridgeline case
By Tina Richards
The California State Supreme Court heard oral arguments in the case filed by Orange Citizens for Parks and Recreation, challenging the Ridgeline property’s land use designation, Sept. 29, in San Diego.
The Supreme Court hearing was the culmination of a multi-year battle between residents and neighbors of Orange Park Acres versus Ridgeline property owner Milan REI and a past city council. At issue was whether the zoning designation for the former Ridgeline golf course is “open space” or “low density residential.”
Orange Citizens relied on the open space designation that appeared in the city’s 2010 and 1989 General Plans. Milan and the 2011 city council contend that a 1973 amendment to the OPA Specific Plan adding a low density option to the property should stand.
The case of Orange Citizens vs. Milan REI asked the court to determine whether or not the city’s 2010 General Plan supersedes the 1973 amendment that had been forgotten and ignored for 40 years.
Back in 2011, the new owner of the 52-acre golf course sought a zone change from “open space” to “low density residential.” Milan REI intended to build 39 estate homes on the parcel. Because the city’s recently updated General Plan designated the parcel as open space, the then-city council agreed to the amendment to accommodate the housing project.
Invalidate the voters
Orange Citizens launched a referendum to overturn that amendment and successfully qualified it for the ballot. Just after that, the developer uncovered what was termed as an “elegant solution” to the referendum “problem.” Milan discovered a document reflecting a last-minute amendment to the 1973 OPA Specific Plan that added “low density residential” to the golf course’s existing open space land use.
Blowing off 40 years of dust, Milan convinced the city attorney that by relying on that unrecorded document, a General Plan amendment was not necessary, and that even if voters rejected it, Milan’s project could continue.
The developer sued the city in an attempt to keep the referendum off the ballot, but also claimed that the referendum didn’t matter anyway. The developer argued that the city and the court should ignore the current General Plan because, 40 years ago, a prior city council had intended to designate the property for residential use.
Voters subsequently rejected the amendment changing the General Plan, and Orange Citizens filed a countersuit against the city and Milan.
The trial court ruled in favor of the developer, as did the court of appeals. Orange Citizens submitted the case to the California Supreme Court in 2013, and the justices agreed to hear it.
What you see?
Addressing the Supreme Court justices, Orange Citizens’ attorney Robert Perlmutter argued that the dual designation was never validated by subsequent planning documents. In 1985, when Orange annexed the property from the county, it was described as open space, he noted. When Orange created a General Plan in 1989 and updated it in 2010, Ridgeline was designated open space.
Perlmutter asked the court to confirm that a city’s General Plan is paramount, and that the 2010 document, by definition, replaces all that has gone before. He asked the court to establish a General Plan’s “fairness, transparency and certainty” for the public. It was also up to the court, he said, to decide what the plan’s contents were in 2011. Did a map, clearly calling the acreage open space, define it? Or did a dual designation not openly addressed in current or past General Plans, and not immediately apparent to the public, take precedence?
Colin Pearce, representing Milan, and Dave DeBerry, representing the city, both stressed that the 1973 OPA Specific Plan amendment was actually part of the 2010 (and 1989) General Plan, and that the map depicting Ridgeline as open space was a “clerical error.”
Pearce told the court that the 1973 document was always an implied part of the city’s General Plan, and that the OPA plan was cited as an additional land-use resource.
He argued that the dual use designation could have been found if anyone had looked for it. The land-use map in the General Plan, he said, was “just a graphic” and the details were in the referenced OPA plan.
Is what you get?
Several justices appeared uncomfortable with the concept of a long ignored, little known document having authority above what was generally understood by the public. “So the average member of the public has to go digging to find out what’s in planning commission documents?” Justice Goodwin Liu asked. “They have to go back to 1973? That’s why we have notice requirements, to tell the public what happened.”
“Anyone walking into the city could find it,” Pearce replied. “It wasn’t lost. You have to do due diligence.”
“That’s not the issue,” Liu said later. “It’s who bears the burden for making the law clear?’ Should it be a citizen rifling through papers, or should it be the record keeper, the city?”
DeBerry emphasized that the 1973 dual designation was “the law.” The zoning amendment the developer asked for and the city granted in 2011, he said, was not to change the zoning at all, but to make the language in the General Plan consistent with the language in the OPA plan.
“If the property was already zoned low-density,” Liu asked, “why did the developer ask for an amendment? He wouldn’t have needed one. Why would the planning commission recommend a zone change?”
“If the developer was confused,” Chief Justice Tani Cantil-Sakauye noted, “if the city was confused, it’s fair to say the public was confused.”
The court is expected to issue its ruling within 90 days of the hearing date.