182 Cal.App.3d 21 (1986) 227 Cal. Rptr. 226

ELYSIAN HEIGHTS RESIDENTS ASSOCIATION, INC., et al., Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES et al., Defendants and Respondents; MORTON PARK ASSOCIATES, Real Party in Interest and Respondent.

Docket No. B017422.

Court of Appeals of California, Second District, Division Two.

June 6, 1986.

*23 COUNSEL

Lawrence Teeter, Barbara S. Blinderman and Jeffrey S. Cohen for Plaintiffs and Appellants.

Henry W. McGee, Jr., as Amicus Curiae on behalf of Plaintiffs and Appellants.

James K. Hahn, City Attorney, Gary R. Netzer, Sr., Claudia McGee Henry, and Anthony Saul Alperin, Assistant City Attorneys, and Michael S. Woodward, Deputy City Attorney, for Defendants and Respondents.

Ervin, Cohen & Jessup, Allan B. Cooper and Debra L. James for Real Party in Interest and Respondent.

*24 OPINION

COMPTON, Acting P.J.

Elysian Heights Residents Association, Inc., et al., hereinafter appellants, appeal from a judgment of the superior court denying their petition for administrative mandamus. (See Code Civ. Proc., § 1094.5.) By way of this petition, appellants sought the revocation of a building permit issued by respondents City of Los Angeles et al. (City) to Morton Park Associates (Morton) for the construction of a three-story, forty-five unit apartment complex. Pursuant to appellants' request, and in order to preserve the status quo, we stayed further development of the project pending the outcome of this appeal. We now affirm the judgment and vacate the stay order.

The essential facts are not in dispute and may be summarized as follows. The subject property, located on Morton Avenue in the Elysian Park area of Los Angeles, consists of 5 lots approximately 250 feet in length and 150 feet in width. Morton first became interested in purchasing the parcel for development in March 1984, after reviewing the applicable zoning ordinances and finding that an apartment building with a maximum of 46 units could be constructed on the property. With its investigation completed, and apparently unaware of any specific challenges to, or plans to change, the existing zoning, Morton agreed to purchase the land for $450,000. Following the opening of escrow in April 1984, Morton prepared and submitted architectural and soil plans for the project to the department of building and safety; applied for grading, demolition, and building permits; and obtained approval of purchase money and construction loans in an amount exceeding $1.8 million.

Several months later, in August 1984, escrow closed and Morton was issued grading and demolition permits for the project. After receiving its building permit the following October, the developer demolished three existing structures on the property, commenced clearing and grading operations, excavated and recompacted the soil in accordance with the plans submitted to building and safety, and poured over 140 cubic yards of concrete footings for the foundation. While proceeding with this work, Morton also entered into various contracts with construction contractors and subcontractors for labor and materials needed for the project.^[1]

In late October 1984, appellants, who were aware of the project and had been monitoring its progress through their city council representative for *25 several months, first attempted to halt construction by appealing the issuance of the building permit to the board of zoning administrators on the ground that the size of the proposed apartment complex exceeded the density limits specified in the City's general plan for the Silver Lake-Echo Park area.^[2] The applicable provisions of that plan classified the project site as "low-medium one residential," allowing for seven to twelve dwelling units per gross acre.^[3]

In December 1984, while the administrative appeal was still pending, the department of building and safety, pursuant to the terms of an ordinance imposing a moratorium on all projects which exceeded the zoning and height requirements of the district plan, ordered Morton to immediately cease all construction work. At approximately the same time various homeowner associations filed an action in superior court, entitled Federation of Hillside Canyon Associations, Inc. et al. v. City of Los Angeles (L.A. Super. Ct. No. 526, 616), to prevent the City from issuing building permits for development of property inconsistent with the general plan. Before this matter could be heard, however, the zoning administrator ruled on appellants' appeal, finding that building and safety did not err or abuse its discretion in issuing Morton's building permit.^[4] This decision was immediately challenged by an appeal to the City's board of zoning appeals. In the interim, the board of building and safety commissioners conducted a hearing to determine whether Morton had a vested right to continue its construction pursuant to the terms of the City's moratorium ordinance. Although the commissioners eventually found that vested rights had accrued, a finding *26 required by the moratorium ordinance before construction would be allowed to continue, they stayed their decision pending the outcome of the appeal to the board of zoning appeals.

In January 1985, the superior court, in ruling on the Federation of Hillside Canyon Associations case, supra, issued a writ of mandate requiring the City to bring its zoning ordinances into conformity with the general plan, but denied the petitioners' request for an injunction against the issuance of building permits for inconsistent development. As a result, in April 1985, the City enacted the interim permit consistency ordinance which generally prohibited the department of building and safety from issuing permits which deviated from the requirements of the plan. Section 4C of the ordinance exempted those projects: "(1) For which architectural and structural plans sufficient for a complete plan check for a permit for such development were accepted by the Department of Building and Safety and for which a plan check fee was collected on or before the effective date of the ordinance [April 3, 1985], and (2) For which no subsequent changes are made to those plans which change the height, floor area, occupant load, number of dwelling units or number of guest rooms."

On April 16, 1985, the zoning administrator's ruling on the legality of Morton's building permit became final when the board of zoning appeals failed to act on the appeal. The following day appellants filed their petition for administrative mandamus and injunctive relief in the trial court. In denying the relief requested, the court, without specifically referring to the City's consistency ordinance, determined that because of respondents' conduct in granting the permit and the expenditures made by Morton prior to the commencement of this litigation, it would not be equitable to terminate the project.^[5] This appeal follows.

(1a) We first consider appellants' contention that the disputed building permit was issued in violation of state statute and was thus void ab initio and must be revoked. The major thrust of appellants' argument in this regard *27 is that building permits, to be validly issued, must be consistent with a municipality's general plan. It is, therefore, necessary to determine whether Government Code section 65860 mandates such conformity.

(2) We begin our analysis with the fundamental rule that a court, in interpreting a statute, should ascertain the intent of the Legislature so as to effectuate the purpose of the law. "In determining such intent `[t]he court turns first to the words themselves for the answer.' [Citation.] We are required to give effect to statutes `according to the usual, ordinary import of the language employed in framing them.' [Citations.] `If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.' [Citation.] `[A] construction making some words surplusage is to be avoided.' [Citation.] `When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]" (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230-231 [110 Cal. Rptr. 144, 514 P.2d 1224].)

(3) Applying the foregoing principles to the case at bench, we first note that in recent years the Legislature has enacted a number of statutes as part of the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), the combined effect of which is to require that cities and counties adopt a general plan for the future development, configuration, and character of a city and county and require that future land use decisions be made in harmony with that general plan. (City of Los Angeles v. State of California (1982) 138 Cal. App.3d 526, 530 [187 Cal. Rptr. 893]; Bownds v. City of Glendale (1981) 113 Cal. App.3d 875, 880 [170 Cal. Rptr. 344].) These requirements, forming what is generally referred to as the consistency doctrine, promote a particular nexus between land-use plans and government regulation of land use, such as zoning and subdivision map approval.

The doctrine has its roots in the language of the Standard Zoning Enabling Act (U.S. Dept. of Commerce, The Standard State Zoning Enabling Act, 1922 [rev. ed., 1926.]), which provides that zoning shall be done "in accordance with" a comprehensive plan. (See DiMento, Improving Development Control through Planning: The Consistency Doctrine (1978) 5 Colum. J. Envtl. L. 1.) Under this historical antecedent of the consistency doctrine, violations of the "in accordance with" language were found when (1) only selected areas within a municipality were regulated by zoning; (2) zoning was done by means of an interim ordinance that was enacted by legally questionable government practices; or (3) the zoning ordinance failed *28 to control one or more of the factors it was intended to regulate. (See DiMento, Developing the Consistency Doctrine: The Contribution of the California Courts (1980) 20 Santa Clara L.Rev. 285, 286.)

California's state planning laws took what some may consider a giant step forward when the Legislature, in 1973, mandated that zoning changes and subdivision approvals be consistent with the local general plan, and that the plan itself be internally consistent. (Lefcoe, California's Land Planning Requirements: The Case for Deregulation (1981) 54 So. Cal.L.Rev. 447, 488.) Although the Planning and Zoning Law establishes the authority of most local government entities to regulate the use of land (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 518-519, fn. 18 [113 Cal. Rptr. 836, 522 P.2d 12]), it commands municipalities to adopt "a comprehensive, long-term general plan for the physical development of the county or city...." (Gov. Code, § 65300.) The plan itself must include, inter alia, a statement of policies, and nine specified elements: land use, circulation, housing, conservation, open-space, seismic safety, noise, scenic highway, and safety. (Gov. Code, § 65302.) Section 65566 requires that acquisition, regulation, and any other actions of the local government related to open space conform to the local open-space plan. Under section 65567, building permits, subdivision maps, and zoning ordinances affecting open space must be consistent with the open space plan. Section 65803 exempts charter cities from the consistency statutes unless they adopt these requirements or fall within the provisions of section 65860. And, sections 66473 and 66474 set forth various requirements for attaining subdivision consistency with general and specific plans.

(1b) Most relevant here, of course, is section 65860, which generally requires that county or city zoning ordinances be consistent with the general plan of the county or city, and allows private citizens to bring suit to enforce consistency of zoning with the general plan. Subdivision (d) specifically makes the statute applicable to Los Angeles and establishes a time table for bringing the City's zoning ordinances into conformity with the general plan.^[6]

As can be seen, neither the language of section 65860 nor the statutory scheme in general mandates that building permits be scrutinized for plan *29 consistency. Indeed, had the Legislature intended to fashion such a requirement, it clearly had the power to do so. In this regard, the State Planning and Zoning Law specifically prohibits the adoption or issuance of permits, subdivision maps, or zoning ordinances that are inconsistent with open space plans;^[7] requires that tentative subdivision tract maps be drawn in conformity with the general plan (Gov. Code, § 66474.61, subd. (a)); and allows a court to enjoin issuance of all permits where a general plan is found to be inadequate. (Gov. Code, § 65755.) There is, however, nothing in the legislative history of section 65860 to suggest that the Legislature intended to prohibit the issuance of building permits for projects consistent with the zoning of a particular community but not the general plan. Moreover, there is no mention of any remedies available to halt construction of projects which are not in conformity with the general plan, and no sanctions are provided for noncompliance with section 65860, subdivision (d).

(4) Generally, the enumeration of acts or things as coming within the operation of a statute precludes the inclusion by implication of other acts or things not listed. (Western Pioneer Insurance Co. v. Estate of Taira (1982) 136 Cal. App.3d 174, 181 [185 Cal. Rptr. 887].) (1c) Applying this rule to the instant case, we think it clear that the Legislature has purposefully failed to prohibit the issuance of building permits while the consistency process is being implemented. In the absence of any such provision it would ill-behoove any court to indirectly mandate the withholding of permits that are not in conformity with a municipality's general plan. If the Legislature desires such consistency, it should specifically say so.

Recognizing that amending zoning ordinances to make them consistent with a general plan would take time, the Legislature added subdivision (c) to section 65860 which states: "In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such plan, or to any element of such plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended." (Italics added.) The trial court had before it evidence that in 1982 the City had approximately 200,000 lots which had zoning inconsistent with the applicable general plan. If appellants' contentions were correct, no new building permits could be issued until all inconsistently zoned lots were made to conform to the provisions of the general plan. This would bring new construction in the City to a grinding halt and cause economic havoc. *30 As one commentator has aptly observed, "Halting construction for the years it takes to adopt a general plan [or amend zoning ordinances] works great hardship. During those years of delay, some projects that were once economically feasible will become impracticable. Even those projects that survive the de facto moratorium will be costly to consumers if developers are able to recoup their increased land holding, construction, and borrowing costs through higher prices. For buyers priced out of the market by these delays, the loss may be irretrievable; anyone who doubts it should talk to a renter who could have afforded a house some years ago, but who had been left behind by rising prices. Neither the courts nor the Legislature seem to have understood who really pays the price when zone changes, building permits, and subdivision approvals are withheld pending the adoption of a general plan." (Lefcoe, California's Land Planning Requirements: The Case for Deregulation, supra, 54 So. Cal.L.Rev. 447, 489.)

The decision of the Court of Appeal in Hawkins v. County of Marin (1976) 54 Cal. App.3d 586 [126 Cal. Rptr. 754] supports the conclusions reached here. In that case, a religious, social service group sponsored a plan for constructing federally subsidized multiunit housing for the elderly on land owned by an affiliate of the Roman Catholic Church in an area zoned for single-family residences. After an unsuccessful first attempt, the group secured a conditional use permit. Two years after the permit was issued, landowner neighbors of the proposed development brought suit against the county, contending that the project was impermissible under the property's zoning and, if not, then the county's zoning regulations were inconsistent with its general plan. The thrust of the argument was that conditional use permits, as well as zoning ordinances, must be consistent with county general plans.

The court readily disposed of the consistency argument by reference to section 65860 and related statutes. "Since use permits issued pursuant to [the] Marin County Code ... must necessarily conform to its requirements, it follows that if the code section is kept consistent with the general plan, use permits issued thereunder will also be consistent therewith. There is no requirement, however, that such permits themselves be reviewed for consistency with the plan under section 65860. [¶] As noted, section 65860 applies to zoning ordinances. It says nothing about permits issued pursuant to such ordinances. That a conditional use permit is not an ordinance is obviously true.... Moreover, since statutes related in purpose to section 65860 expressly require plan consistency for subdivision maps [citation] and, ... [open space] projects requiring a building permit [citation], the failure of section 65860 to create a parallel requirement for conditional use permits is significant. We conclude that, in this case, section 65860 is *31 inapplicable to the use permit issued by the County of Marin." (Hawkins v. County of Marin, supra, 54 Cal. App.3d 586, 594-595.)

Appellants' reliance on Neighborhood Action Group v. County of Calaveras (1984) 156 Cal. App.3d 1176 [203 Cal. Rptr. 401], is totally misplaced. There, a citizens' group sued Calaveras County and a construction company challenging the issuance of a conditional-use permit for the processing of hydraulic mine tailings in the production of sand and gravel. The complaint alleged the permit was invalid because the noise and safety element of the county's general plan did not comply with state statutes. The court held that the use permit was ultra vires if the county's general plan lacked elements required by state law relevant to the use sought. (Id., at p. 1184.)

These facts are inapposite to the case at bench. Appellants have not nor cannot allege that the City's general plan is in violation of state statute. Rather, appellants want the building permits declared void because the zoning was, and apparently remains inconsistent with the Silver Lake-Echo Park district plan. What appellants fail to grasp, however, is that Morton obtained its building permit consistent with then existing zoning laws. Given the basis for the court's decision in Neighborhood Action, supra, the case provides no support for appellants' contention that section 65860 requires consistency review of building permits.

(5a) We also think it clear that Morton's permit was issued in complete compliance with the City's land use regulations. At the time of issuance nothing in the Los Angeles Municipal Code (LAMC) required consistency between building permits and the general plan. LAMC section 12.21 (a)(1)(a) merely mandated conformity between permits and the applicable zoning ordinances.^[8] As previously noted, Morton's plan to construct a 45-unit apartment complex was in complete accord with then existing zoning laws. Once an applicant has complied with the appropriate land use regulations, the department of building and safety has no discretion to deny issuance of a permit. (LAMC § 81.0203.)

(6) The City's interim ordinance, which does require permit/plan consistency, was given only prospective application and thus did not affect the validity of Morton's permit. After balancing competing interests, the city council properly determined that projects which had been approved prior to the ordinance's effective date, and did not vary from their originally *32 approved plans, were entitled to go forward. As found by the trial court in the Federation of Hillside Canyon Associations case, supra, the enactment of the interim ordinance represented a good faith effort by the City to bring its regulations into substantial compliance with state law. (7) Zoning ordinances are, of course, presumed to be a valid exercise of the police power with every intendment in favor of their validity. "The wisdom of the prohibitions and restrictions is a matter for legislative determination, and even though a court may not agree with that determination it will not substitute its judgment for that of the zoning authorities if there is any reasonable justification for their action." (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461 [202 P.2d 38, 7 A.L.R.2d 990].) (5b) We agree with respondents that for this court to now say that the issuance of Morton's building permit constituted an abuse of discretion would seriously undermine the city council's authority to enact land use regulations and invite a further, unending spiral of litigation. It must be remembered that the plan which appellants view as sacrosanct was itself a creature of the City and presumptively can be changed by the City.

Having concluded that the State Planning and Zoning Law does not preclude issuance of permits which may be inconsistent with a community's general plan, and that Morton's building permit was issued in compliance with city ordinances, we need not discuss appellants' remaining contentions.

The judgment is affirmed and the stay order is vacated.

Beach, J., concurred.

GATES, J.

I respectfully dissent.

Initially I confess my inability to understand how the judiciary's utilization of one of its ordinary legal remedies to enforce a statutory mandate expressly drafted by the legislative branch could, in some fashion, constitute a violation of the separation of powers doctrine. It would seem rare indeed for our lawmakers to add to their prescribed commands, separate admonishments directing the courts of this state to fulfill their constitutional duty to see that those enactments are honored.

My colleagues hold that if our Legislature desires consistency between a building permit for proposed new construction and that portion of a general plan covering the geographic area in which the construction is to occur, it should specifically say so. (Maj. opn. p. 29.) However, Government Code section 65860 already includes the express commandment: "(a) County or city zoning ordinances shall be consistent with the general plan of the county *33 or city by January 1, 1974."^[1] It is difficult for me to imagine why our lawmakers would have insisted upon such consistency if they had not intended it to impact upon all developments undertaken after the dates designated.

Subdivision (c) of section 65860 provides: "In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such a plan, or to any element of such a plan, such zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended."

My colleagues emphasize the words "shall be amended within a reasonable time." (Maj. opn. p. 29.) I would stress instead those words which reveal that this subdivision treats only with an instance where "a zoning ordinance becomes inconsistent with a general plan by reason of amendment to such a plan, or to any element of such a plan...."

So far as is applicable to these proceedings there has been no amendment of the Los Angeles General Plan. The city simply has declined for eight long years to follow the law as enacted in 1978, a law which explicitly required it to bring its zoning into compliance with its general plan in the first instance. (Stats. 1978, ch. 357, § 1.)

Similarly, subdivision (b) of section 65860 announces: "Any resident or property owner within a city or a county, as the case may be, may bring an action in the superior court to enforce compliance with the provisions of subdivision (a)," which, as quoted ante, mandates conformity. The only time limit placed on instituting even such an action as this is that it should be brought "within 90 days of the enactment of any new zoning ordinance or the amendment of any existing zoning ordinance...." (Italics added.) Los Angeles' nonconforming zoning ordinances are neither new nor amended.

In any event, we are not here concerned with a suit that seeks to conform zoning to a general plan. Therefore, in my view, the fundamental question that engages us should not be resolved by focusing upon the fact that even when zoning is inconsistent, it is mechanically possible to obtain a document captioned: "Building Permit." What we must decide is whether or not our legislators intended concrete and steel buildings to continue to be erected in locales wherein it had long been determined they had no place. For my *34 part, I believe our lawmakers were not striving for paper consistency, but compatibility among living people, their structures and their neighborhoods.

I also fail to see how a city that has for years deliberately failed to conform its zoning to its general plan, may now "grandfather in" future illegal construction by the enactment of an "Interim Ordinance." I agree, of course, that challenged zoning ordinances are ordinarily "presumed to be a valid exercise of the police power with every intendment in favor of their validity." (Maj. opn. p. 32.) However, the zoning ordinance here in issue was, and has been for many years, concededly contrary to the law. The Los Angeles City Council's "Interim Ordinance" does not attempt to declare otherwise; it merely purports unilaterally to extend the period in which that illegality may be ignored.

Lastly, I do not perceive how the "equities" of this situation can redound to the benefit of this developer. I sincerely hope I shall never be guilty of minimizing or demeaning the great social contributions bold entrepreneurs make under our free enterprise system. Nevertheless, most profit-making ventures, almost by definition, entail some element of risk. Here, Morton Park Associates (Morton), as did many, many others in Los Angeles, hastened to obtain a building permit for a structure which it knew would not comply with the provisions of Los Angeles' general plan. Opportunity for such a calculated gamble remained open solely because of the city's turtling efforts to correct its long invalid zoning.

Consequently, when weighing equities, it is pointless to compare Morton's position and conduct with the city's, for both share the same ground. This fact is made manifest not only by the words set forth in their respective briefs, but also by their deeds. However, if Morton's entitlement is compared to that of the hundreds of residents in the affected area, only some of whom are directly represented by appellants, a much different picture appears.

In this particular, though recognizing the fault may be my own, I concede my inability to comprehend how, before even one foundational brick is laid, a developer can acquire the right to mar forever a residential neighborhood with winding narrow streets by constructing therein a massive building it knew in advance would constitute a permanent nonconforming use immediately upon completion.

There are many today who, with good reason, express consternation and regret at our citizenry's increasing resort to the initiative process to protect those public interests they believe their representatives have failed to guard. *35 If these critics should seek to understand the causes of this phenomenon, they might well review the history of this case.

Despite my foregoing hastily drafted, and perhaps too colorful, observations, I recognize that to date I stand alone. If my views are not ultimately to prevail, I certainly have no desire to cause Morton further needless expense by delaying the filing of this decision. Therefore, I shall not attempt to compose a detailed analysis of my colleagues' opinion, but shall lapse into silence, ending this dissent by attaching as an appendix, appellant's reply brief, a document whose contents I find convincing. In turn, I trust that Morton will not seek to aggravate its potential damages by any action taken during the pendency of a petition for review, should one be filed. This is, unfortunately, one of the few areas in life or in law where self-inflicted wounds are sometimes deemed advantageous.

A petition for a rehearing was denied July 2, 1986. Gates, J., was of the opinion that the petition should be granted. Appellants' petition for review by the Supreme Court was denied July 31, 1986.

APPENDIX

BUILDING PERMIT IS VOID IF THE ZONING UPON WHICH IT IS BASED IS INCONSISTENT WITH THE GENERAL PLAN.

In this case, neither Real Party nor Respondents contest Appellants' claim that the building permit at issue below was issued with reference to zoning that is inconsistent with the general plan. Instead, they simply assert that such a building permit is valid upon issuance so long as it is consistent with the zoning in effect at the time, even if such zoning is inconsistent with the plan. It is not denied that the City of Los Angeles has been and remains under a statutory duty to establish conformity between existing zoning and the general plan and that zoning in effect at the site in question reflected a violation of this statutory duty by Respondents. (Government Code § 65860). In effect, Real Party and Respondents maintain that conformity between a building permit and existing zoning insulates the permit from attack even if the zoning in question, and hence the permit itself, conflict with the general plan and the Government Code's well settled statutory insistence upon consistency between plan and zoning.

In their opening brief, Appellants cited Neighborhood Action Group v. County of Calaveras (1984) 156 Cal. App.3d 1176 [203 Cal. Rptr. 401], a case which Real Party and Respondents have attempted at considerable length to distinguish from the present controversy. An analysis of their arguments and this decision serves to vindicate Appellants' thesis that building permits which conflict with a general plan are void ab initio.

In Neighborhood, supra, the Court held "that the issuance of a conditional use permit is ultra vires if the general plan of the issuing entity (see Gov. Code, § 65300 et seq.) does *36 not conform to mandatory statutory criteria which are relevant to the uses sought by the permit." (Id., p. 1179). Both Respondents and Real Party have argued that this holding does not apply to the present case, in which appellants seek to vindicate rather than challenge the general plan in question. (Respondents' Brief, hereinafter RB, 20, Real Party's Brief, hereinafter RPB, 26). Respondents also argue that Neighborhood, which involved a conditional use permit, is inapplicable to building permit cases, since the issuance of a building permit involves a ministerial act rather than an exercise of discretion available in conditional use permit cases. (RB, 20-21). As shall become clear from the following discussion, both of these attempts to attack the applicability of Neighborhood to this case are without substance.

In Neighborhood, supra, 156 Cal. App.3d 1176, the Court utilized the following language in articulating its conclusion that the general plan enjoys primacy in the hierarchy of land use controls: "The general plan is atop the hierarchy of local government law regulating land use. It has been aptly analogized to `a constitution for all future developments.' (See O'Loane v. O'Rourke (1965) 231 Cal. App.2d 774 [42 Cal. Rptr. 283].) The Legislature has endorsed this view in finding that `decisions involving the future growth of the state, most of which are made and will continue to be made at the local level, should be guided by an effective planning process, including the local general plan, and should proceed within the framework of officially approved statewide goals and policies directed to land use, population growth and distribution, development, open space, resource preservation and utilization, air and water quality, and other related physical, social and economic development factors.' (Section 65030.1 [Gov. Code.].)

"Subordinate to the general plan are zoning laws, which regulate the geographic allocation and allowed uses of land. Zoning laws must conform to the adopted general plan. ([Gov. Code] § 65860; Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal. App.3d 800 [184 Cal. Rptr. 371].) ..." (Neighborhood, supra, at p. 1183). The court then proceeded to discuss the position occupied by permits in the hierarchy of land use controls, and made the following observation: "Although use permits are not explicitly made subject to a general plan meeting the requirements of state law, that condition is necessarily to be implied from the hierarchical relationship of the land use laws. To view them in order: a use permit is struck from the mold of the zoning law (§ 65901); the zoning law must comply with the adopted general plan (section 65860); the adopted general plan must conform with state law. (§§ 65300, 65302). The validity of the permit process derives from compliance with this hierarchy of planning laws." (Neighborhood, supra, p. 1184).

In view of this hierarchy, the Court concluded as follows: "A permit action taken without compliance with the hierarchy of land use laws is ultra vires as to any defect implicated by the uses sought by the permit." (Ibid.)

It is clear from the foregoing language that an invalid zoning scheme cannot insulate a permit from attack. Land use controls stand in a hierarchical relationship to each other. Each level of this hierarchy presupposes for its validity its conformity with all more pervasive controls. If zoning that conflicts with a general plan could insulate a building permit from attack, then a general plan which violates state law could insulate from attack a conditional permit that contradicted statutory policies. Neighborhood rejected this view. It clearly defeats the arguments advanced by Real Party and Respondents in this case.

From the foregoing discussion, it is clear that attempts to distinguish Neighborhood from the present matter are doomed to failure. The fact that Neighborhood involved an invalid rather than a valid general plan is simply irrelevant as a point of material distinction. The whole point of Neighborhood is that permits which conflict with valid general plans are ultra vires. This is Appellants' position.

The Neighborhood decision is also important due to its discussion of Hawkins v. County of Marin (1976) 54 Cal. App.3d 586 [126 Cal. Rptr. 754], upon which both Real Party and Respondents attempt to rely in their briefs. This discussion is entirely ignored by both Real Party and Respondents. The reason is obvious. In Neighborhood, supra, 156 Cal. App.3d 1176, the Court observed: "The county and Teichert rely on Hawkins, supra, to support their claim that conditional use permits need not be consistent with the county general plan. The plaintiffs in Hawkins sought to invalidate a conditional use permit approved on March 6, 1972, by means of a complaint filed two years after the permit was granted. They invoked a provision in section 65860 which provided then, as now, that zoning ordinances must be *37 consistent with the adopted general plan commencing January 1, 1974. (See Stats. 1973, ch. 120, § 6, p. 184). The use permit was approved (1972) prior to the effective date of the conformity requirement. (See Stats. 1971, ch. 1446, § 12, p. 2858.) However, in dicta [footnote], the court said that `section 65860 is inapplicable to a review of the [conditional use] permit' since it contains `no requirement ... that such permits themselves be reviewed for consistency with the [general] plan'; it reasoned that `[s]ince use permits issued pursuant to [the zoning ordinance] must necessarily conform to its requirements, it follows that if [the zoning ordinance] is kept consistent with the general plan, use permits issued thereunder will also be consistent therewith.' (Id., 54 Cal. App.3d at pp. 594-595, italics added.)" (Id., at pp. 1185-1186, first italics added.) Thus, the entire passage cited by Respondents (RB 18-19) and Real Party (RPB 24-25) is nothing more than dicta, since the consistency requirement contained in Government Code section 65860 did not even apply to the zoning at issue in Hawkins at the time of the contested permit's issuance. See Neighborhood Action Group, 156 Cal. App.3d, p. 1186, fn. 7.

In their next paragraph, the Neighborhood opinion's authors then proceeded to articulate the following criticism of Hawkins' dicta: "The flaw in the argument is the conditional `if'. If the general plan is not consistent with state law, the zoning ordinance may fail to provide criteria by which to measure the propriety of the uses sought by the permit. The Hawkins reasoning opens the door to defeat of the purpose of a general plan to provide enforceable standards by which the administering agency must measure the propriety of the permits. (Citation.)" (Neighborhood, supra, at p. 1186.) By parity of reasoning, if