“De Vita” Decision Doesn’t Supersede State Law Requirements

Thank you for the opportunity to comment on the article on the California Supreme Court's decision in DeVita v. County of Napa published in your May issue. Given the significance of this case to local land use planning, your readers should be aware of an important aspect of the decision which the article failed to note. The ruling reaffirms the basic tenet that general plans and their amendments must continue to meet the substantive requirements of State law. Our Department has an interest in this matter because of our responsibility to review local housing elements and to assist localities to comply with State law governing the adoption and amendment of housing elements. 

Contrary to the implications of the article, the case does not diminish the internal consistency requirements and substantive requirements of general plan law. The court in footnote 12 made the following point: "We emphasize that an initiative amendment must conform to all the formal requirements imposed on general plan amendments enacted by the legislative body. The amendment itself may not be internally inconsistent or cause the general plan as a whole to become internally inconsistent… or to lack any of the statutory specifications for the mandatory elements of the general plan…" 

The DeVita case deals with an amendment to the land use element of the general plan, an element which is governed by State law only in very broad terms. In contrast, the adoption and the content of local housing elements is governed by the detailed and specific provisions of Article 10.6, commencing with Government Code § 65580. The county's housing element was not at issue in DeVita and the Court expressly noted it did not decide the status of an initiative that either amends or conflicts with the housing element of a general plan. In footnote 11 the court stated: 

"In deciding today that the land use element of the general plan may be amended by initiative, we have no occasion to consider whether the same is true for the housing element. As noted above, the housing element, unlike the other mandatory elements, must be amended according to a fixed schedule—at least once every five years (Government Code, § 65588, subdivision (b)). Moreover, any draft amendment to the housing clement must be submitted to the State Department of Housing and Community Development for review and comments (Government Code, § 65585.) 

In the present case, Measure J neither purports to amend the housing element nor was found inconsistent with it. Thus, we do not decide the status of an initiative that either amends or conflicts with the housing element of a general plan." 

The California Legislature has declared the availability of housing as a critical issue of statewide concern (e.g., Government Code § 6S580, 65S89(d), 65913.9). As land use initiatives frequently address issues related to residential development, the Court's exclusion of the housing element from its decision is a significant qualifying factor to the potential impact of the decision.