Filed 1/13/14



                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                    DIVISION THREE

FOOTHILL COMMUNITIES
COALITION,

    Plaintiff and Appellant,                    G047326

        v.                                      (Super. Ct. No. 30-2011-00467132)

COUNTY OF ORANGE et al.,                        OPINION

    Defendants and Appellants;

ROMAN CATHOLIC DIOCESE OF
ORANGE et al.,

     Real Parties in Interest and Appellants.

FOOTHILL COMMUNITIES
COALITION,
                                                G048024
    Plaintiff and Appellant,

        v.

COUNTY OF ORANGE et al.,

    Defendants and Respondents;

ROMAN CATHOLIC DIOCESE OF
ORANGE et al.,

    Real Parties in Interest and
Respondents.
              Appeals from a judgment in No. G047326 and a postjudgment order in
No. G048024 of the Superior Court of Orange County, Gail Andrea Andler, Judge.
Judgment reversed and remanded with directions. Appeal from postjudgment order
dismissed as moot.
              Leibold McClendon & Mann and John G. McClendon for Plaintiff and
Appellant in Nos. G047326 and G048024.
              Nicholas S. Chrisos, County Counsel, Roger Freeman and Nicole M.
Walsh, Deputy County Counsel, for Defendants and Appellants in No. G047326.
              Manatt, Phelps & Phillips, Jack S. Yeh and Keli N. Osaki for Real Parties
in Interest and Appellants in No. G047326 and for Real Parties in Interest and
Respondents in No. G048024.
              No appearance for Defendants and Respondents in No. G048024.
                                  *          *           *


                                      INTRODUCTION
              The Roman Catholic Diocese of Orange (the Diocese) and Kisco Senior
Living, LLC (Kisco), desire to build a living community for senior citizens on a parcel of
real property, owned by the Diocese (the Project), which is located in an unincorporated
area of Orange County (the County). The County Board of Supervisors (the Board)
created a new zoning definition for senior residential housing, and applied it to the
Project site; found the Project was consistent with the County‟s general plan and the
“North Tustin Specific Plan” (sometimes referred to as NTSP); and found the Project
complied with the California Environmental Quality Act (Pub. Resources Code, § 21000
et seq.) (CEQA). Foothill Communities Coalition, an unincorporated association of
grassroots community groups and area homeowners (Foothill), challenged the Board‟s



                                             2
decisions by means of a petition for a peremptory writ of mandate. The trial court
entered judgment in favor of Foothill, and issued the requested writ.
              Appellants1 challenge the trial court‟s conclusion that the Board‟s acts
constitute impermissible spot zoning. We publish this case to clarify the law regarding
spot zoning in two respects. First, spot zoning may occur whether a small parcel of
property is subject to more or less restrictive zoning than the surrounding properties.
Second, to determine whether impermissible spot zoning has occurred, a court is required
to conduct a two-part analysis. After determining that spot zoning has actually occurred,
the court must determine whether the record shows the spot zoning is in the public
interest.
              In this case, applying the required standard of review, which is deferential
to the Board, we conclude the Board‟s findings that the Project would be consistent with
the County‟s general plan and with the North Tustin Specific Plan are supported by
substantial evidence. The creation of the new senior residential housing zone and its
application to the Project site were not arbitrary or capricious, or lacking in evidentiary
support. Although the Board‟s actions constituted spot zoning, the spot zoning was
permissible. The trial court erred in entering judgment in Foothill‟s favor and in issuing
the writ of mandate. We therefore reverse. As explained in detail, post, we remand the
matter for further consideration by the trial court of issues relating to CEQA.
              Our reversal of the judgment renders moot Foothill‟s appeal2 challenging
the trial court‟s refusal to award it attorney fees as the prevailing party. (Costa Serena



       1
          The Diocese, Kisco, the County, and the Board filed a joint appellants‟ opening
brief. The County and the Board thereafter advised this court that they would not make
any further appearances in the case. For ease of reference throughout the opinion, we
will refer to the Diocese, Kisco, the County, and the Board, collectively as Appellants.
        2
          On our own motion, we order the companion appeal, No. G048024,
consolidated with appeal No. G047326.

                                              3
Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175,
1206.)


           STATEMENT OF FACTS, CHRONOLOGY, AND PROCEDURAL HISTORY
              In 1956, the Diocese received a gift of a 7.25-acre parcel of undeveloped
property in the North Tustin area of the County. In 2003, the Diocese decided to develop
the property as a senior residential community. The Diocese retained senior living
communities developer Kisco to design and implement the Project. In January 2009, the
Diocese and Kisco submitted to the County a project design proposing 153 senior living
units.
              The Project site is located within the area covered by the North Tustin
Specific Plan, which regulates the development of property within its boundaries and was
adopted by the Board in 1982. Under the North Tustin Specific Plan, the Project site is
designated as residential single-family. In July 2009, the County issued a notice of
preparation for the Project‟s environmental impact report (EIR). The draft EIR was
released in May 2010 for a 45-day public comment period. The final EIR was released
by the County in December 2010.
              In January 2011, the County Planning Commission conducted a public
hearing on the Project, at the end of which it recommended that the Board approve the
Project and certify the final EIR. The Board conducted a public hearing on the Project,
after which it issued one ordinance and two resolutions approving the Project and making
necessary changes to the North Tustin Specific Plan to permit its development. In
ordinance No. 11-008, the Board amended the North Tustin Specific Plan to add a new
zoning district for senior residential housing and to change the land use district for the
Project site to the new senior residential housing designation. In resolution No. 11-038,
the Board certified the EIR for the Project as complete, accurate, and in compliance with
the requirements of CEQA. And in resolution No. 11-039, the Board approved both a use

                                              4
permit for the Project as a senior living facility, and a site development permit. In
March 2011, the Board amended the North Tustin Specific Plan to create a new zoning
district—the senior residential housing land use district—which it applied to the Project
site. The same month, the County filed a notice of determination of the Board‟s approval
of the Project and certification of the final EIR.
              In April 2011, Foothill filed a verified petition for a writ of mandate and
complaint for declaratory relief against the County and the Board. In March 2012, the
trial court issued a minute order granting the petition. Judgment was entered. Foothill
filed a motion for a new trial (in order to clarify whether the writ and the judgment
resolved the CEQA issues raised in the petition), which was denied. Foothill, the
Diocese and Kisco, and the County and the Board filed separate, timely notices of appeal.


                                         DISCUSSION
                                              I.
                                    STANDARD OF REVIEW
              “The „rezoning of property, even a single parcel, is generally considered to
be a quasi-legislative act‟ thus „subject to review under ordinary mandamus.‟ The
standard for review of a quasi-legislative act is whether the action was „arbitrary or
capricious or totally lacking in evidentiary support.‟ [Citations.]” (Avenida San Juan
Partnership v. City of San Clemente (2011) 201 Cal.App.4th 1256, 1268; see Arnel
Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 521-522; Wilkins v. City of
San Bernardino (1946) 29 Cal.2d 332, 338-340 (Wilkins).)3




       3
         The trial court applied the proper standard of review of the Board‟s decision, as
evidenced by the court‟s minute order which reads, in relevant part: “The court finds that
the passage of the ordinance providing for the new zoning was arbitrary and/or
capricious.”

                                              5
              “„In a mandamus proceeding, the ultimate question, whether the agency‟s
action was arbitrary or capricious, is a question of law. [Citations.] Trial and appellate
courts therefore perform the same function and the trial court‟s statement of decision has
no conclusive effect upon us. [Citation.]‟ [Citation.]” (Western/California, Ltd. v. Dry
Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461, 1492.)
              The party challenging a zoning ordinance as arbitrary or capricious bears
the burden of producing sufficient evidence from which the trier of fact may conclude
that the ordinance is unreasonable and invalid. (Wilkins, supra, 29 Cal.2d at p. 338;
County of Butte v. Bach (1985) 172 Cal.App.3d 848, 860.) In this case, the burden of
proof was on Foothill.4


                                              II.
                                   APPELLANTS’ APPEALS
                                              A.
              Zoning Decisions Are Exercises of the County’s Police Power.
              “It is well settled that zoning ordinances, when reasonable in object and not
arbitrary in operation, constitute a justifiable exercise of police power, and that the
establishment, as part of a comprehensive and systematic plan, of districts devoted to
strictly private residences or single family dwellings, from which are excluded business
or multiple dwelling structures, is a legitimate exercise of the police power.” (Wilkins,
supra, 29 Cal.2d at p. 337.)
              The Project site is subject to both the County‟s general plan and a specific
plan. “[T]he general plan [is] a „“constitution” for future development‟ [citation] located
at the top of „the hierarchy of local government law regulating land use‟ [citation]. [¶]
The general plan consists of a „statement of development policies . . . setting forth

       4
         We do not find persuasive the out-of-state cases cited by Foothill, which place
the burden of proof on a governmental agency making a zoning change.

                                              6
objectives, principles, standards, and plan proposals.‟ [Citation.] The plan must include
seven elements—land use, circulation, conservation, housing, noise, safety and open
space—and address each of these elements in whatever level of detail local conditions
require [citation]. General plans are also required to be „comprehensive [and]
long[]term‟ [citation] as well as „internally consistent.‟ [Citation.] The planning law thus
compels cities and counties to undergo the discipline of drafting a master plan to guide
future local land use decisions.” (DeVita v. County of Napa (1995) 9 Cal.4th 763,
772-773, fn. omitted.)
              A specific plan, such as the North Tustin Specific Plan, is usually more
detailed than a general plan, and covers specific parts of the community. The approval of
a specific plan does not create a vested right to develop property in a manner consistent
with the specific plan, or to prevent development inconsistent with it. (People v. County
of Kern (1974) 39 Cal.App.3d 830, 837-838.) A specific plan may be adopted or
amended by resolution or ordinance of the appropriate legislative body. (Gov. Code,
§§ 65358, 65453.) These sections of the Government Code recognize that “[a] county‟s
needs necessarily change over time . . . . It follows that a county must have the power to
modify its land use plans as circumstances require.” (Napa Citizens for Honest
Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 357-358.)
Despite Foothill‟s argument to the contrary, the North Tustin Specific Plan does not
constitute a contract entered into by the County. (See Gov. Code, § 65453, subd. (a)
[specific plans “may be amended as often as deemed necessary by the legislative body”].)
              A particular project must be “compatible with the objectives, policies,
general land uses, and programs specified in” the general plan or any applicable,
officially adopted specific plan. (Gov. Code, § 66473.5.) Government Code
section 66473.5 has been interpreted “as requiring that a project be „“in agreement or
harmony with”‟ the terms of the applicable plan, not in rigid conformity with every detail



                                             7
thereof.” (San Franciscans Upholding the Downtown Plan v. City and County of San
Francisco (2002) 102 Cal.App.4th 656, 678.)
              The ordinance by which the new senior residential housing zoning district
was created and applied to the Project site reads, in relevant part, as follows: “The
County, after balancing the specific economic, legal, social, technological, and other
benefits of the proposed Project, has determined that the unavoidable adverse
environmental impacts identified . . . may be considered acceptable due to the following
specific considerations which outweigh the unavoidable, adverse environmental impacts
of the proposed Project, each of which standing alone is sufficient to support approval of
the Project . . . .” The specific considerations identified by the County include: (1) the
Project addresses the housing element goals for senior housing set forth in the County‟s
general plan, (2) the Project is compatible with the character of the surrounding
neighborhood, (3) the Project addresses and remedies existing issues with storm drains
and runoff, (4) the Project would provide for a deed restriction to be imposed on the
property, so that future owners would be prohibited from other incompatible uses, and
(5) the Project allows for implementation of policies set forth in the North Tustin Specific
Plan.
                                             B.
                                        Spot Zoning
              Foothill contends the zoning change created an instance of impermissible
spot zoning. “The essence of spot zoning is irrational discrimination.” (Avenida San
Juan Partnership v. City of San Clemente, supra, 201 Cal.App.4th at p. 1268.) “Spot
zoning is one type of discriminatory zoning ordinance. [Citation.] „Spot zoning occurs
where a small parcel is restricted and given lesser rights than the surrounding property, as
where a lot in the center of a business or commercial district is limited to uses for
residential purposes thereby creating an “island” in the middle of a larger area devoted to
other uses. [Citation.] Usually spot zoning involves a small parcel of land, the larger the

                                              8
property the more difficult it is to sustain an allegation of spot zoning. [Citations.]
Likewise, where the “spot” is not an island but is connected on some sides to a like zone
the allegation of spot zoning is more difficult to establish since lines must be drawn at
some point. [Citation.] Even where a small island is created in the midst of less
restrictive zoning, the zoning may be upheld where rational reason in the public benefit
exists for such a classification.‟ [Citation.]” (Arcadia Development Co. v. City of
Morgan Hill (2011) 197 Cal.App.4th 1526, 1536.)
              Appellants correctly note that no published case in California has directly
addressed the type of spot zoning at issue here—where the small parcel is given greater
rights than the surrounding property. We reject Appellants‟ argument that this means the
zoning change by the Board is not spot zoning. “A spot zone results when a small parcel
of land is subject to more or less restrictive zoning than surrounding properties.”
(Hagman et al., Cal. Zoning Practice (Cont.Ed.Bar 1969) § 5.33, p. 152, italics added.)
Several published cases in California indirectly acknowledge that spot zoning occurs
whether the “spot” is subject to more or less restrictive zoning than the surrounding
property. In Tandy v. City of Oakland (1962) 208 Cal.App.2d 609, 611, a property‟s
owners petitioned for a writ of mandate to compel the city to rezone the property from
multiple dwelling to commercial, which would have made the petitioners‟ property an
island of less restrictive zoning. The appellate court rejected the petitioners‟ request, not
because it did not raise an issue of spot zoning, but because it was inappropriate for the
courts to interfere with a distinctly legislative decision: “The propriety of rezoning
plaintiffs‟ single parcel from multiple dwelling to commercial while maintaining the
remainder of the area in a multiple dwelling zone is a matter of legislative determination,
and where, as here, there is room for difference of opinion on the subject, the courts will
not interfere with the legislative determination. [Citations.]” (Id. at p. 612.)
              In Case v. City of Los Angeles (1956) 142 Cal.App.2d 66, 67-68, the owner
of 26 acres of land zoned “C-2” sought a change in zoning to the less restrictive “C-M”

                                              9
for three and one-third acres of its total acreage; the remaining portion of the owner‟s
property would remain zoned as C-2. The trial court found that the ordinance by which
the city made the requested zoning change “„violates good zoning practice and
comprehensive zoning planning and does not satisfy or meet good zoning practice and
was arbitrary and discriminatory with respect to owners of property similarly situated.‟”
(Id. at p. 67.) The appellate court accepted that the zoning change was an example of
spot zoning, but reversed a portion of the judgment because the plaintiffs (who owned
property that did not adjoin the rezoned property and did not share either the original or
the amended zoning classification) did not have standing to pursue their claim: “While
ordinances for spot zoning and those which create monopolies are examples of illegal,
unreasonable, arbitrary and discriminatory zoning [citations], in an action for declaratory
relief . . . [citation] the court is authorized to determine and declare only the issues
between the parties to the action. It having been found in the instant action that none of
plaintiffs‟ properties is „similarly situated‟ to that zoned by Ordinance Number 100,775,
and that none of plaintiffs‟ rights are infringed by it, the paragraph of said judgment from
which defendants have appealed is a declaration concerning matters not properly in
issue.” (Id. at p. 70.)5




       5
          Appellants argue in their opening brief that Foothill lacked standing to seek the
writ because Foothill was not the owner of the “spot” and had not suffered any harm as a
result of the change in the zoning of the spot. In an instance where spot zoning favors the
owner of the spot by loosening the zoning restrictions that continue to apply to the
surrounding property owners, those surrounding property owners have standing to
challenge the zoning change. Foothill is described in its petition as “an unincorporated
umbrella organization composed of and supported by grassroots community groups and
others devoted to the preservation of the environment,” whose members reside and/or
own real property in and around the North Tustin area. Appellants do not argue Foothill
lacked standing because its members, or the members of the community groups
comprising Foothill, did not own property surrounding the Project site that remained
subject to the single-family residential housing zone.

                                              10
               In Wilkins, supra, 29 Cal.2d at page 341, the California Supreme Court
agreed that spot zoning exists when the spot receives either more or less restrictive
zoning, although the opinion implies that only the application of more restrictive zoning
is problematic: “So-called „spot‟ zoning results in the creation of two types of „islands.‟
As pointed out above, the objectionable type arises when the zoning authority improperly
limits the use which may be made of a small parcel located in the center of an
unrestricted area. The second type of „island‟ results when most of a large district is
devoted to a limited or restricted use, but additional uses are permitted in one or more
„spots‟ in the district. It is the second type of „island‟ that is presented in this case, and if
there is any discrimination, it is in favor of the „island‟ since it may be devoted to a
greater number of uses than the surrounding territory. It is clearly within the discretion of
the legislative body of the city to determine whether such an „island‟ should be enlarged
or not, and the mere fact that the owner may enjoy greater benefits, or that his property
will be enhanced in value, if the size of the island is increased, cannot entitle him to
compel the allowance of such increase in size.” In Wilkins, the city had twice denied a
property owner‟s request that his property be rezoned from single-family residential to
business. (Id. at pp. 334-335.) The trial court, in ruling on the property owner‟s
declaratory relief claim, determined the zoning ordinance was unconstitutional as applied
to that property owner, and enjoined its enforcement against him. (Id. at p. 334.)
               The Supreme Court reversed the judgment, and set forth two clear rules of
law applicable to challenges to zoning decisions. First, “[t]he courts cannot write the
zoning laws and cannot say that the legislative body has erred in drawing the lines of the
districts, or in restricting the territory devoted to business or to multiple dwellings, unless
there is a clear showing of abuse of legislative discretion.” (Wilkins, supra, 29 Cal.2d at
p. 339.) Second, “[w]here it is claimed that the ordinance is unreasonable as applied to
plaintiff‟s property, or that a change in conditions has rendered application of the
ordinance unreasonable, it is incumbent on plaintiff to produce sufficient evidence from

                                               11
which the court can make such findings as to the physical facts involved as will justify it
in concluding, as a matter of law, that the ordinance is unreasonable and invalid. It is not
sufficient for him to show that it will be more profitable to him to make other use of his
property, or that such other use will not cause injury to the public, but he must show an
abuse of discretion on the part of the zoning authorities and that there has been an
unreasonable and unwarranted exercise of the police power.” (Id. at p. 338.)
              Many other jurisdictions have concluded that an amendment to a zoning
ordinance that singles out a small parcel of land for a use different from that of the
surrounding properties and for the benefit of the owner of the small parcel and to the
detriment of other owners is spot zoning. (See, e.g., Yellow Lantern Kampground v.
Town of Cortlandville (N.Y.App.Div. 2000) 279 A.D.2d 6, 9 [716 N.Y.S.2d 786,
788-789]; Schubach v. Zoning Board of Adjustment (1970) 440 Pa. 249, 253-254 [270
A.2d 397, 399]; Balough v. Fairbanks North Star Borough (Alaska 2000) 995 P.2d 245,
264; Pharr v. Tippitt (Tex. 1981) 616 S.W.2d 173, 177 [24 Tex. Sup. Ct. J. 392];
Palisades Properties, Inc. v. Brunetti (1965) 44 N.J. 117, 134 [207 A.2d 522, 533-534].)
              We hold the creation of an island of property with less restrictive zoning in
the middle of properties with more restrictive zoning is spot zoning. This conclusion
does not end our analysis, however, as spot zoning may or may not be impermissible,
depending on the circumstances. “The rezoning ordinance may be justified, however, if a
substantial public need exists, and this is so even if the private owner of the tract will also
benefit.” (Pharr v. Tippitt, supra, 616 S.W.2d at p. 177.) “[T]he term „spot zoning‟ is
merely shorthand for a certain arrangement of physical facts. When those facts exist, the
zoning may or may not be warranted. . . . [¶] Spot zoning may well be in the public
interest; it may even be in accordance with the requirements of a master plan.” (Hagman
et al., Cal. Zoning Practice, supra, § 5.35, pp. 154-155; see Arcadia Development Co. v.
City of Morgan Hill, supra, 197 Cal.App.4th at p. 1536 [spot zoning may be upheld if
public would benefit from it].)

                                              12
                                             C.

 Were the Creation of the New Zoning District and Its Application to the Project Site in
        the Public Interest, and Were Those Decisions Arbitrary or Capricious,
                           or Devoid of Evidentiary Support?
              Foothill‟s overriding argument is that the change in zoning of the Project
site was inconsistent with the North Tustin Specific Plan. “No . . . zoning ordinance may
be adopted or amended within an area covered by a specific plan unless it is consistent
with the adopted specific plan.” (Gov. Code, § 65455.) Under the applicable standard of
review, we consider the Board‟s factual findings of consistency and defer to them unless
“no reasonable person could have reached the same conclusion on the evidence before
it.” (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th
777, 782.)
              We note initially that the California Legislature has encouraged the
development of senior citizen housing by creating a 20 percent density bonus for such
projects. (Gov. Code, § 65915, subds. (b)(1)(C), (f)(3).) The Board‟s approval of the
Project and change in zoning to permit the Project to be constructed are consistent with
statewide priorities.
              The creation of the senior residential housing zoning district is in the public
interest and consistent with the County‟s general plan and with the North Tustin Specific
Plan. In enacting resolution Nos. 11-038 and 11-039, the Board found, based on the facts
in the administrative record, that “[t]he proposed Project would be consistent with the
General Plan, NTSP, as amended, and Senior Living Ordinance.” As defined in
ordinance No. 11-008 creating the senior residential housing district, only senior housing
units, not other types of multidwelling uses (such as apartment buildings), can be built on
the Project site. Also, the development standards are consistent with the surrounding
residential single-family zoning district. We reach this conclusion based on our review of




                                             13
the many factual findings of consistency with the applicable general and specific plans,
which are included in the administrative record.
              The housing element, one of nine elements of the County‟s general plan,
provides, in relevant part: “The special housing needs of seniors are an important
concern in Orange County. This is especially so since many retired persons are likely to
be on fixed low incomes, at greater risk of impaction, or housing overpayment. In
addition, the elderly maintain special needs related to housing construction and location.
Seniors often require ramps, handrails, lower cupboards and counters to allow greater
access and mobility. In terms of location, because of limited mobility the elderly also
typically need access to public facilities (e.g., medical and shopping) and public transit
facilities. [¶] . . . In general, every effort should be made to maintain the dignity, self-
respect, and quality of life of mature residents in the County. [¶] . . . [¶] In 2000, there
were 6,162 owner households and 606 renter households in unincorporated Orange
County where the householder was 65 or older . . . . Of these, 1,235 elderly persons were
living alone. Many elderly persons are dependent on fixed incomes and/or have a
disability. Elderly homeowners may be physically unable to maintain their homes or
cope with living alone. The housing needs of this group can be addressed through
smaller units, second units on lots with existing homes, shared living arrangements,
congregate housing and housing assistance programs.”
              The housing element of the County‟s general plan also states that the
County‟s provision of housing for seniors involves the following: “Senior housing
projects are a permitted use within any residential zoning district. The Zoning Code also
provides a density bonus for the construction of senior housing projects through approval
of an Affordable Housing or Senior Citizen Housing Incentive Use Permit (Section 7-9-
140). The zoning ordinance is not considered to be a constraint to the development of
senior housing because the regulations are the same as for other residential uses in the
same districts.”

                                              14
              The staff report of the communities planning unit to the County Planning
Commission explains that the Project is consistent with the housing element of the
general plan: “The County‟s General Plan includes a Housing Element. The Housing
Needs Assessment . . . of the Housing Element acknowledges that the special housing
needs of seniors are an important concern in the County of Orange. The elderly maintain
special needs related to housing construction and location. The Housing Element states
that every effort should be made to maintain the dignity, self-respect, and quality of life
of mature residents in the County. This applies to mature citizens who prefer to stay in
their own dwellings and those who relocate to a retirement community. According to the
Housing Element, housing is one of the top five concerns among the senior population.
According to the State of California, Department of Finance, in 2000 the total population
of seniors in Orange County, age 55 years and older, was at 509,043, which comprised
about 17.8% of the total population. Orange County‟s senior population increased to
702,919, comprising 21.8% of the total population in 2010. It is anticipated to increase to
945,081 in 2020, which is an estimated 26.8% of the estimated total population . . . . This
is approximately an 86% increase within ten years. [¶] The proposed project is for a
100 percent senior living community, and it will be deed restricted for those 55 years of
age and older. There are two types of living arrangements proposed—independent living
and assisted living. Some independent living units would be located in the main building.
Additionally, the bungalows would serve as independent living units, and are a good
transition for people moving from larger homes to a senior living campus. The
independent residential units do not require licensing from the State of California. The
proposed project would not be a nursing facility and would not offer nursing service.
This project provides two different housing types, thus enabling residents to age in one
place and not have to move as circumstances change.”
              The staff report also explains how the Project is consistent with the North
Tustin Specific Plan: “The project site is located within the NTSP. Land Use Districts

                                             15
within the NTSP serve as the applicable zoning designations. The project site‟s Land
Use District is currently Residential Single Family (100-RSF). The 100 prefix indicates a
requirement of a 100-foot frontage for each building site. Permitted uses are single
detached dwelling units per building site (10,000 square feet minimum), noncommercial
parks and playgrounds, riding and hiking trails, and community care facilities with six or
fewer people, and public facilities. Other principal uses, such as community care
facilities serving seven to twelve persons, churches, and educational institutions, are
permitted subject to approval of a site development permit or a use permit. [¶] In order to
allow attached housing, a Specific Plan Amendment is required to modify the land use
designation in the NTSP to a new residential category, Senior Residential Housing
(„SRH‟). The NTSP provides several goals and policies to ensure compatibility with the
existing community, promote innovative development concepts and balance housing
opportunities. The proposed project is a residential use and the surrounding areas are
also residential uses. The project site is surrounded on three sides (the north, south, and
west) by one- and two-story single-family homes. Across the street to the east of
Newport Avenue are similar single-family homes within the Saint Regis Place and
Ravencrest subdivisions. The proposed senior housing project is residential in character
and would meet all development standards established in the NTSP . . . . Additionally,
19 single-story bungalows are located along the far easterly and westerly portions of the
project site, which were designed to be similar in scale to the surrounding residential
units. . . . [¶] The site‟s design and orientation, including the subterranean parking,
enhanced setbacks, building heights, and earthen berm along Newport Ave, visually
maintain the area‟s residential character. The proposed architectural design and the
proposed layered landscaping make this project‟s design suitable for the North Tustin
community. The California Craftsmen architectural design provides for the varying of
building mass and alternation of the materials, such as stone and woodwork, and colors of
the exterior of the building. The design of the two-story main building and bungalows

                                              16
along the perimeter incorporates variations in the roofline and architectural details and
includes overhanging eaves, recessed entrances, window articulation, separated wall
surfaces, tapered square columns, and varied setbacks. . . . [¶] A detailed analysis of the
proposed project‟s consistency with the major land use design goals and policies of the
various sections of the NTSP is provided in Table 5.1-2 of the Draft EIR. The analysis in
Table 5.1-2 concludes that the proposed project would be consistent with the major
applicable goals and policies of the NTSP. Additional discussion is contained in the
Final EIR, under Sections 2.6 and 2.7, which are both topical responses for comments
received about the project and its consistency with the NTSP. [¶] The project proposes a
new SRH District with site development standards that are comparable to those of the
RSF District . . . . The proposed Springs at Bethsaida is designed such that the setbacks
are comparable to setback requirements of the RSF District. The bungalows located
closest to Newport Avenue . . . are over 32 feet away from the property line. This
exceeds the minimum setback requirement of both the proposed new SRH District and
the RSF District. [¶] The height of the main building is proposed to be 35 feet, measured
from the finished first floor level, which is proposed to be at 225.00 above sea level for
the main building. This finished floor elevation is similar to the existing level for
properties immediately north of the project site, off Ervin Lane, but is a slightly higher
elevation than properties south of the project site, by approximately nine (9) feet. The
finished floor elevation of the 13 bungalows in the rear is comparable to the existing
elevation of the properties immediately south of the project site, which is approximately
216.00 above sea level, and the height of the bungalows are proposed to be up to 16 feet
above finished floor. The height for the bungalows and the main building are consistent
with the height limits for the RSF District. Additionally, landscaping is proposed along
the perimeter of the property, and includes evergreen screening trees and hedges that will
soften the visual impacts of the project for the adjacent neighbors.”



                                             17
              The Board‟s findings in support of the final EIR provide, in relevant part:
“A modification of the land use in the NTSP would meet the intent of the land use design
goals and policies, enhance the role of medium and high density housing, a stated goal of
the NTSP, and permit additional variety of residential densities on the Project site and
would fulfill the need for additional senior housing in the community, which is consistent
with the County of Orange General Plan. The Project would be in substantial conformity
with the goals and policies of the General Plan and the NTSP. Changing the land use
designation within the NTSP of the Project site does not set a precedent for any future
land use changes or rezones. The Project site would continue to be zoned only for
residential uses. No Project-level or cumulative impacts are identified.” Those findings
also provide: “The proposed senior living community provides an opportunity to balance
housing opportunities, promote innovative development concepts, provide landscaping
buffers and maintain residential character as provided in the NTSP, which from a land
use policy perspective allows for orderly implementation of the NTSP and County
General Plan.”
              In the environmental analysis section of the draft EIR for the Project, the
County provided a table explaining the Project‟s consistency with the land use design
goals and policies of the North Tustin Specific Plan. In addition to being a residential
development, consistent with the residential nature of the surrounding community, the
Project was found to be consistent with the North Tustin Specific Plan‟s setback and
landscape design criteria.
              We conclude the Board‟s findings of consistency with the general plan and
the North Tustin Specific Plan are supported by substantial evidence. The creation of the
new senior residential housing zoning district and its application to the Project site were
in the public interest and were not arbitrary or capricious. The trial court erred in
entering judgment in Foothill‟s favor and in issuing the writ of mandate.



                                             18
              In its minute order, the trial court concluded the County had failed to cite to
a “comprehensive plan” addressing senior housing needs. Foothill did not make such an
argument before the trial court, nor does it address this aspect of the minute order on
appeal. We find nothing in the applicable law that would allow us to conclude the
Board‟s approval of the new zone was arbitrary or capricious, based on the lack of a
citation to a comprehensive plan regarding the housing needs of senior citizens. Even if
such a citation were required, we would conclude the references to state law and to the
housing element of the general plan would suffice.
              Foothill argues that the Board was not permitted to conclude the change in
zoning was appropriate because it had previously determined the single-family residential
zone was appropriate for the site on which the Project is to be built. Specifically, in the
EIR prepared in 1982 in connection with the implementation of the North Tustin Specific
Plan, the Board found that the detached single-family residential zoning district was the
“most appropriate and compatible” zoning district for the Project site. While this was
undoubtedly true, we find that the passage of more than 30 years, the development of the
County as a whole, and the changing needs of the people of the County (especially senior
citizens) were proper for the Board to consider in determining that the Project site might
be more appropriately rezoned for other uses.6
                                             D.
            Did the Approval of the Project Violate the Establishment Clause?
              The First Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment, prohibits a state from making any law


       6
         We note that, in that same EIR prepared in connection with the approval of the
North Tustin Specific Plan, the County concluded that “[t]he public facility use (church)
requested by the property owner, Diocese of Orange, would also appear acceptable if site
design is sensitive to the effects of traffic and noise generated by public facility use.”
This undercuts Foothill‟s argument that the property could never be rezoned for any use
other than single-family residential housing.

                                             19
“respecting an establishment of religion, or prohibiting the free exercise thereof.”
(U.S. Const., 1st Amend.; see Cantwell v. Connecticut (1940) 310 U.S. 296, 303.)
Article I, section 4 of the California Constitution provides: “Free exercise and enjoyment
of religion without discrimination or preference are guaranteed.” As the United States
Supreme Court has held, “not every law that confers an „indirect,‟ „remote,‟ or
„incidental‟ benefit upon religious institutions is, for that reason alone, constitutionally
invalid.” (Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 771-772.)
              Among the objectives of the Project, as acknowledged by the Board in
ordinance No. 11-008, is the intent to “[u]tilize the property to fulfill a faith-based
mission of the Diocese of Orange which owns the property and to provide onsite
faith-based services for the community,” and to “[p]rovide faith-based independent and
assisted living facilities for seniors with a range of housing types and densities to balance
housing opportunities consistent with Land Use and Design Goal C of the NTSP.”
Foothill argues that because the Project fulfills a faith-based objective of the Diocese, the
County and the Board violated the establishment clause of the First Amendment by
rezoning the property to allow the Project to be built.
              To determine whether the enactment of a statute runs afoul of the
establishment clause, we consider the following: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect must be one that neither
advances nor inhibits religion [citation]; finally, the statute must not foster „an excessive
government entanglement with religion.‟ [Citation.]” (Lemon v. Kurtzman (1971) 403
U.S. 602, 612-613.) The same analysis applies to governmental actions that are not
strictly legislative. (Feminist Women’s Health Center, Inc. v. Philibosian (1984) 157
Cal.App.3d 1076, 1086-1087.)
              The enactment of the zoning change and the approval of the Project have a
secular legislative purpose—to provide needed housing alternatives for senior citizens
within the County. The primary effect of the zoning change does not advance religion;

                                              20
rather, its primary effect is the creation of a senior residential facility, and the change
from a single-family residential zoning district. Finally, the zoning change does not
foster any entanglement between government and religion. A zoning change or issuance
of a special use permit does not create an entanglement between government and religion
just because the landowner or operator is a religious organization. We reject Foothill‟s
argument that a land use approval equals preference if the landowner is a religious
organization. The zoning change and the approval of the Project do not violate the
establishment clause, under controlling United States Supreme Court authority.
              Foothill makes a new, related argument in its appellate brief. Foothill
argues that the new zoning district gave the Diocese a monopoly on senior residential
housing. We reject Foothill‟s argument for the simple reason that the new zoning district
has been created and is applicable anywhere in the North Tustin Specific Plan area. The
fact that the Diocese‟s property is the first to which the new zoning district has been
applied does not mean the Diocese has a monopoly on it.


                                              III.
                                 FOOTHILL’S CROSS-APPEAL
              Foothill filed a cross-appeal in which it raises two issues. First, Foothill
argues the trial court erred by failing to set aside the ordinance creating the new senior
residential housing zoning district. As set forth in detail, ante, the creation and
application of the new zoning district were in the public interest and were not arbitrary or
capricious. Therefore, we reject Foothill‟s argument that the ordinance creating the new
zoning district must be set aside.
              Second, Foothill argues that the matter must be remanded to the trial court
to rule on Foothill‟s claims that the approval of the Project violated CEQA. In its minute
order, the trial court concluded, “[t]he ruling on the CEQA issues raised by petitioner is
unnecessary given the ruling on the zoning issue.” The proposed judgment and proposed

                                              21
peremptory writ of mandate prepared by Foothill provided that the County and the Board
must set aside and vacate all approvals of the Project pertaining to CEQA, among other
things. Appellants objected on the grounds the judgment and writ exceeded the rationale
expressed by the trial court in its minute order. The trial court agreed with Appellants:
“The court has read and considered the joint objections to the petitioner‟s proposed
judgment and writ of mandate and rules as follows: [¶] . . . Sustained as to objection that
the proposed judgment and writ are in excess of the scope of the court‟s minute order.
The project involved passage of one ordinance and two resolutions. The effect of the
Court‟s ruling as to the ordinance regarding the SRH [(senior residential housing)] zoning
amendment was to only vacate the application of the SRH zoning amendment to Real
Parties[‟] property and not to vacate the creation of the new zone itself. The court did not
vacate CEQA findings or approvals in the ordinance or resolutions.”
              Foothill then filed a motion for a new trial, in which it asked the trial court
to clarify that the court “did not in any way rule on [Foothill]‟s CEQA issues and
therefore that those issues remain vulnerable to future legal challenge and judicial
scrutiny.” In their opposition to the new trial motion, Appellants argued the trial court
should deny the motion because the judgment did not need any clarification. The trial
court summarily denied the motion.
              We conclude there was not a judgment on the merits as to the issues of
compliance with CEQA. The only way to read the judgment and the peremptory writ of
mandate, given the language of the minute orders dated March 8, May 10, and August 16,
2012, is that the trial court determined the Project had been blocked, based on its ruling
on the zoning issues, and, therefore, the trial court did not need to decide whether the
Project should also be blocked based on CEQA issues. The issue of the propriety of the
Board‟s findings regarding CEQA is not before this court on this appeal. The Board‟s
compliance (or alleged lack thereof) with CEQA in approving the Project was fully
briefed and tried in the trial court. On remand, if Foothill intends to pursue its arguments

                                             22
regarding CEQA, the trial court must decide whether additional evidence and/or
argument will be permitted.


                                     DISPOSITION
             The judgment is reversed and the matter is remanded for further
proceedings regarding the CEQA issues. The appeal from the postjudgment order is
dismissed as moot. Appellants to recover costs on appeal.




                                               FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




                                          23
