Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG06272096
SIMONS, J.
Francis Collins (Collins) appeals from the trial court’s denial of his petition for writ of mandate to compel the City of Alameda (City) to rezone his property for residential use in accordance with the City’s general plan. The City cross-appeals, challenging the trial court’s designation of Collins as the prevailing party for purposes of recovering costs. We conclude that the court properly denied the petition for writ of mandate and affirm that decision. Further, we conclude that the court’s order designating Collins as the prevailing party was erroneous, and reverse it. As the prevailing party, the City is statutorily entitled to costs, and we remand to the trial court to make such an award.
Pursuant to Evidence Code section 459, Collins requests that the court take judicial notice of the California Senate Transportation and Housing Committee Analysis of Assembly Bill No. 1233 (Stats. 2005, ch. 614, § 2), which added Government Code section 65584.09. Resort to legislative history is appropriate only when the statutory language is ambiguous. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.) We find the language of the statute unambiguous and deny the request for judicial notice.
The evidence relied on in the Background is taken from the declarations filed below by Collins and the City.
Collins owns real property located on Clement Avenue in the City of Alameda. His 9.4-acre property constitutes approximately one-third of a 27.1-acre area along Alameda’s northern waterfront designated as “Mixed Use-5” (MU-5) in the City’s general plan. At the time Collins filed his petition, his entire property was zoned for manufacturing use; this zoning designation does not allow housing.
The City’s general plan, updated in 1991, sets forth the City’s development policies for 1990 to 2010. The general plan lists five “broad themes” for future development, including: “Multi-use development on the Northern Waterfront: Retention of seaports and related industries, priority space for boating-related activities, and extension of an existing residential neighborhood to a new 10-acre park along the Estuary are the Plan’s boldest policies for both preservation and change.”
The land use element of the 1991 general plan lays out the proposed location, distribution and extent of land use. The land use element designates MU-5 as a mixed use site and calls for residential use (300 two-family units), office use (40,000 square feet), and industry use (10 acres). It states two “guiding policies” for the land in MU-5: development of the property with 250 to 350 residential units, and creation of a “continuous 300-foot-wide ‘marina green’ park along the Estuary.”
The general plan’s housing element, as updated in 2003, inventories the land designated or to be designated for housing over the planning period of 2001 to 2006. The housing element’s “Land Availability and Supply Table” calls for 300 total housing units in the 27.1-acre MU-5 site. The housing element states that the MU-5 site “is made up of a number of parcels located both north and south of Clement Avenue between Willow Street and Oak Street. The general plan calls for the redevelopment of existing industrial sites for 250 to 350 two-family residential units, treating the area north of Clement Avenue as an extension of the residential neighborhood to the south. Development applications for part of this area have been filed. A zoning change would be required to provide housing on this site.” The supply map included in the housing element shows the MU-5 site; it does not indicate the proposed estuary park discussed in the land use element.
Collins has submitted several applications to develop his property over the past 10 years, none of which has been approved. Most recently, in October 2005, Collins filed the current development application with the City’s planning and building department. The application proposed a 242-unit housing development on Collins’s 9.4-acre property, and requested a rezoning of the entire property from manufacturing use to residential use. In January 2006, Collins submitted a signed request for rezoning of his property to either mixed use or residential. Over the next six months, Andrew Thomas, planning services manager for the City’s planning and building department, communicated several times with Collins about the contents of his application.
In May 2006, Collins filed his petition for writ of mandate under Code of Civil Procedure section 1085. The petition alleged that the City had not yet acted on Collins’s January 2006 zoning request, and requested a writ directing the City to rezone Collins’s property to allow medium density residential use. In September 2006, Collins moved for a peremptory writ of mandate, setting a hearing for October 5, 2006.
By October 5, 2006, the City had scheduled an October 9 public hearing before the planning board on Collins’s rezoning request, and an October 17 review by the city council of the board’s recommendations. Based on these developments, the trial court continued the hearing on Collins’s motion to October 26, and instructed the parties to file a joint status report on the results of the October 9 and October 17 proceedings. The court later continued the hearing to November 9, 2006.
On October 9, 2006, the planning board held a public hearing on Collins’s rezoning request. The board voted to recommend that the city council (1) deny a general plan amendment requested by Collins that would eliminate 4.6 acres of the planned 10-acre estuary park, and (2) approve rezoning of 4.8 acres of Collins’s property to residential use, while leaving the remaining 4.6 acres zoned for manufacturing use.
On October 17, 2006, the city council held a public hearing to consider the general plan amendment and rezoning, as recommended by the planning board. Following the public hearing, city council members discussed issues related to the proposed amendment and rezoning, including the need to preserve 10 acres of open space along the estuary as called for in the general plan and the unit-per-acre density of Collins’s proposed development. The city council voted to approve an ordinance that rezoned 4.8 acres of Collins’s property from manufacturing use to residential use. The ordinance stated that the city council found the ordinance “necessary to achieve general plan consistency.” A map attached to the ordinance shows that the 4.8-acre plot to be rezoned for residential use lies approximately 300 feet south of the estuary (inland property), while the 4.6-acre plot that remained zoned for manufacturing use lies directly on the estuary (waterfront property). The city council conducted the required second reading of the ordinance on November 1, and voted to approve final passage.
In November 2006, the court heard argument from both parties on the merits of Collins’s petition. The court then allowed supplemental briefing from both sides, and continued the hearing to December 19. On December 19, the court heard argument and issued an order denying Collins’s petition as moot and declaring Collins the prevailing party. At the hearing, the court stated that it agreed with Collins that the City had a ministerial duty to rezone the inland property (the property the City had already rezoned for residential use), but concluded that the City did not have a ministerial obligation to rezone the waterfront property.
Collins filed a timely notice of appeal, and the City filed a timely notice of cross-appeal.
Discussion
“If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the lower court reached its conclusion.” (Estate of Beard (1999) 71 Cal.App.4th 753, 776.) The trial court denied Collins’s petition on the grounds of mootness. On appeal, we affirm on the ground that a writ of mandate cannot properly issue to compel rezoning of Collins’s waterfront property for residential use. Because this is dispositive, we do not address the parties’ arguments regarding mootness.
I. Writ of Mandate
Collins contends on appeal that the court erred in failing to issue a writ of mandate directing the City to rezone the waterfront property to allow residential use. Collins argues that a writ of mandate should have issued for four reasons: (1) the City had a ministerial duty to rezone the waterfront property in accordance with its general plan; (2) the City had a ministerial duty to rezone the waterfront property in accordance with its housing element; (3) even if the City’s rezoning decisions were discretionary, the City abused its discretion by refusing to rezone the waterfront property for residential use, and (4) the court erred in not enforcing the density bonus law.
Collins’s writ petition sought rezoning of his entire 9.4-acre property to allow residential use. However, the city council rezoned the inland property for residential use before the trial court’s hearing on Collins’ motion. Thus, the only question before the trial court was whether a writ of mandate could issue to compel rezoning of the waterfront property. We focus our analysis on this issue, and do not discuss whether a writ could have issued to compel rezoning of the inland property for residential use.
An ordinary writ of mandate “may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ. Proc., § 1085.) Mandate “will lie to compel action by a public body or official only if there is a clear, present, and ministerial obligation to take the action. [Citations.] Conversely, the action commanded cannot invade the area of discretion with which [a public body] is vested over a given subject matter. [Citations.]” (Sklar v. Franchise Tax Board (1986) 185 Cal.App.3d 616, 622.)
A. Standard of Review
“When reviewing a trial court’s ruling on a petition for traditional writ of mandate, we review any findings under the substantial evidence standard. We review independently questions of law based on undisputed facts or facts properly found by the trial court. [Citations.]” (Kurz v. Federation of Pétanque U.S.A. (2006) 146 Cal.App.4th 136, 144.) Because the issues here are questions of law based on undisputed facts, we review the trial court’s order de novo.
B. There Is no Ministerial Duty to Rezone Under the City’s General Plan
Collins contends that a writ of mandate should issue directing the City to rezone the waterfront property to allow residential use. He maintains that the general plan, and in particular the housing element, designate the MU-5 area for housing, and, therefore, the City has a ministerial duty to rezone the region to allow residential use. The City is a charter city, and normally exempt from the Government Code requirement that its zoning ordinances must be consistent with its general plan. (Gov. Code, §§ 65860, subd. (a) [consistency is required]; 65803 [charter cities exempt from consistency requirement “except to the extent that the same may be adopted by charter or ordinance of the city”].) We assume without deciding, however, that Collins is correct that the City is bound by the consistency requirement. Further, we assume that the current zoning of the waterfront property for manufacturing use is inconsistent with the City’s general plan and that Collins is authorized pursuant to section 65860, subdivisions (b) and (c) to bring a mandamus action to compel rezoning where such an inconsistency occurs. Even so, Collins’s appeal fails because the City has no ministerial duty to rezone the waterfront property for residential or mixed use under its general plan.
All undesignated section references are to the Government Code.
A writ of mandamus cannot issue to compel the City to rezone the waterfront property in a particular way, because the general plan provides the City with multiple options. Mandate applies only when the petitioner seeks to compel a ministerial, not discretionary, act. (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 138.) But where a general plan has several guiding policies for a piece of land, a city has discretion in implementing those policies. The consistency requirement in section 65860 does not eliminate this discretion and require the city to “blindly adopt” the zoning designations in the plan. (Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201, 1215 (Mira).) In Mira, petitioner sought rezoning of its property from its current designation (four housing units per acre) to a low-medium density designation (15 units per acre), because it wanted to build a 140-unit apartment building on the property. (Id. at pp. 1204-1205.) The city’s community plan, which accompanied the housing element, designated petitioner’s property as “low-medium density,” and also stated that development should be coordinated with the provision of public services. (Id. at pp. 1211-1212.) The city council denied petitioner’s application to rezone the property for low-medium density use as designated in the community plan. (Id. at pp. 1204-1205.) The appellate court affirmed the trial court’s denial of a writ of mandate, concluding that the city council did not abuse its discretion by refusing to rezone the property. (Id. at p. 1204.) Although the charter city was exempt from the section 65860 consistency requirement, the court looked to consistency between the city council’s action and the general plan in order to determine if the challenged action was an abuse of discretion. (Mira, at p. 1214.) The court held that “[e]ven if the terms of section 65860 were applied under subdivision (a)[2], a zoning ordinance is consistent with a plan only if the ‘various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in such a plan.’ This provision, as well as the terms of the housing element and community plan, do not envision the city will blindly adopt the designated densities in the plan, but rather contemplate that a proposed zoning ordinance will be evaluated in light of the overall goals of the plans and current conditions. [Citations.]” (Mira, at p. 1215.) The court concluded that the city acted within its discretion in balancing the housing element’s overall goals of residential development and provision of public services, and denying petitioner’s application to rezone. (Id. at p. 1216.)
Collins seeks a writ of mandate to compel the City to rezone the waterfront property in a particular manner, that is, to allow for residential or mixed use. However, the City’s general plan, like the general plan in Mira, has several broad goals for the land at issue. (See Mira, supra,205 Cal.App.3d at 1215.) The land use element of the 1991 general plan has two “guiding policies”: development of the property with 250 to 350 residential units, and creation of a “continuous 300-foot-wide ‘marina green’ park along the Estuary.” The general plan emphasizes the importance of these dual goals in its “broad themes” for future development, stating that “extension of an existing residential neighborhood to a new 10-acre park along the Estuary” is one of the general plan’s “boldest policies for both preservation and change.” The revised housing element, adopted in 2003, reiterates the general plan’s goal of 250 to 350 residential units in the MU-5 area. However, Collins’s entire parcel consists of only one-third of the MU-5 area, and the waterfront property is approximately one-half of Collins’s parcel. Thus, when the MU-5 parcel is considered in its entirety, both of the “guiding policies” are achievable. In deciding how best to implement these policies, the City must exercise its discretion, and a decision not to rezone the waterfront property for medium-density residential use is within the ambit of that discretion. Writ of mandate cannot lie to control these discretionary decisions and compel a particular zoning result.
In his reply brief, Collins argues for the first time that “[a]lthough there may be some question as to what zoning of [Collins’s] remaining property is directed under [the City’s] general plan, there is no question that the existing zoning . . . is not consistent with the general plan.” Collins appears to request that the City be ordered to rezone the waterfront property in a fashion that is consistent with the general plan, without specifying any particular zoning result. However, Collins does not make this argument in his opening brief, but instead argues for a writ directing the City to rezone the waterfront property for residential or mixed use in accordance with the general plan. “ ‘Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ [Citation.]” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Because we conclude it would be unfair to the City, we refuse to address the argument raised for the first time in Collins’s reply brief.
For the same reason, we reject Collins’s argument that the City should be ordered to rezone the waterfront parcel for mixed use, a zoning designation that permits either residential development or a park. There is a meaningful distinction between a zoning designation that allows both residential and park uses, and one that allows only park use. The City may have reasons to zone the land for open space use only, rather than for mixed use or residential use, and this is a decision that should be left to its discretion.
Further, we reject Collins’s contention that the housing element takes precedence over other elements of the general plan, and creates a ministerial duty to rezone the waterfront property for residential use. The housing element reiterates the general plan’s goal of 250 to 350 residential units in MU-5, but does not mention the planned estuary park. In addition, the housing element does not expressly require rezoning of the entire 27.1 acres in MU-5 for residential use, and nothing in the record suggests that such rezoning must occur to accomplish the goal of building the prescribed number of residential units. The general plan asserts two central policies for the MU-5 site, and how to balance these policies is a discretionary question for the City.
In support of his argument that a writ should issue to compel rezoning, Collins relies primarily on Youngblood v. Board of Supervisors (July 12, 1977, Civ. No. 14893, 4th Dist. [formerly 71 Cal.App.3d 655]), vacated and superseded by Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644. The vacated Court of Appeal decision in Youngblood may not be cited in a party’s brief. (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).)
C. There Is no Ministerial Duty to Rezone Under Housing Element
Collins also contends that, independent of its obligation to rezone under section 65860, the City has a ministerial duty to rezone the waterfront property for residential use under housing element law (§ 65580 et seq.). The City again argues that mandate cannot issue to compel a particular legislative act.
Every city or county in California must adopt a housing element that includes an assessment of housing needs, an inventory of land suitable for residential development, and a statement of the locality’s goals for the development of housing. (§ 65583, subds. (a) & (b).) Prior to adoption, the locality must submit a draft of its housing element to the state Department of Housing and Community Development for review. (§§ 65582, subd. (c), 65585, subd. (b).) The assessment of housing needs must include the locality’s share of regional housing needs. (§§ 65583, subd. (a)(1), 65584, subd. (b).) The housing element must include a five-year plan that sets forth the actions the city “is undertaking or intends to undertake” to meet its housing goals, and must “[i]dentify actions that will be taken to make sites available during the planning period of the general plan with appropriate zoning and development standards and with services and facilities to accommodate that portion of the city’s or county’s share of the regional housing need . . . .” (§ 65583, subd. (c)(1).) “If a court finds that an action of a city, county, or city and county, which is required to be consistent with its general plan, does not comply with its housing element, the city, county, or city and county shall bring its action into compliance within 60 days.” (§ 65587, subd. (c).)
For housing elements due to be reviewed by the Department of Housing and Community Development after January 1, 2006, if “a city or county in the prior planning period failed to identify or make available adequate sites to accommodate that portion of the regional housing need allocated pursuant to Section 65584, then the city or county shall, within the first year of the planning period of the new housing element, zone or rezone adequate sites to accommodate the unaccommodated portion of the regional housing need allocation from the prior planning period.” (§ 65584.09, subd. (a).)
Collins contends that the City has a ministerial duty to rezone the MU-5 land for residential use under section 65584.09, subdivision (a). He argues that the “Land Availability and Supply Table” in the housing element calls for 300 housing units in the 27.1-acre MU-5 site, and if the City does not rezone land in MU-5, the table does not show adequate low-income housing units to meet the City’s share of the regional housing need. However, Collins has not shown that the City failed to comply with section 65584.09, subdivision (a); he has not provided evidence of when the prior planning period ended, or that the City failed to make adequate sites available to accommodate its share of the regional housing need for that period and then failed to rezone adequate sites in the first year of its new planning period.
Moreover, we conclude that the statutory provisions cited by Collins do not create a ministerial duty to rezone the waterfront property. The court in Mira rejected a similar argument, holding that sections 65583 and 65587 did not create a “mere ministerial duty to conform the zoning to multifamily residential as designated in the housing element. [¶] . . . [¶] We do not construe these sections as having the effect of removing the city’s power and duty to exercise its discretion in making a zoning decision based on the public welfare. . . . Further, the legislative scheme does not contemplate that a city’s plan has the force of a zoning enactment which only requires the city to engage in the ministerial duty of passing the zoning ordinance. [Citations.]” (Mira, supra,205 Cal.App.3d at p. 1214, fn. 7.)
We agree with the analysis in Mira. The statutory provisions related to housing elements require the City to identify and make available adequate sites to accommodate its share of the regional housing need; they do not create a ministerial duty to zone any particular site in a particular manner. (§§ 65583, 65584.09, 65587, subd. (c).) The City retains discretion as to how to accommodate its share of the regional housing need. For example, the City could meet its commitment to provide 300 housing units in MU-5 by choosing to make other property in the 27.1-acre site available for housing, while keeping the waterfront property open for parkland. At the hearing on Collins’s rezoning petition, city council members noted that MU-5 encompasses two other parcels of land that can also accommodate residential units, and voted to bring the other MU-5 parcels back to the planning board for a recommendation to the council at a future date. A writ of mandate directing the City to rezone the waterfront property for residential use would invade the City’s discretionary decisionmaking authority as to how to accommodate its share of the regional housing need.
D. The City Did Not Abuse Its Discretion
Collins next contends that the City abused its discretion by denying his application to rezone the waterfront property for residential use and leaving it zoned for manufacturing use. The City responds that its decision not to rezone the waterfront property was well within its discretionary powers.
A zoning decision can be overturned by writ of mandate “only if the [local governing body] abused its discretion—that is, did not proceed legally, or if the determination is not supported by findings, or if the findings are not supported by substantial evidence. [Citation.] As for this substantial evidence prong, it has been said that a determination of general plan consistency will be reversed only if, based on the evidence before the local governing body, ‘. . . a reasonable person could not have reached the same conclusion.’ [Citation.]” (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1338.) A zoning decision is consistent with the general plan if “[t]he various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in the plan.” (§ 65860, subd. (a)(2).) A local governing body has abused its discretion where it approves zoning clearly inconsistent with a “fundamental, mandatory and specific land use policy” in its general plan. (Families Unafraid, at p. 1342.)
We conclude that the city council’s denial of Collins’s request to rezone the waterfront property for residential use was not an abuse of discretion. A reasonable person could find that refusing to rezone the waterfront property for residential use at the present time would serve the objectives and policies of the general plan. (§ 65860, subd. (a)(2).) One of the general plan’s “guiding policies” was to create a “continuous 300-foot-wide ‘marina green’ park along the Estuary.” Collins’s request to rezone the waterfront property was understood as requiring an amendment to the general plan that would remove 4.6 acres from the planned 10-acre estuary park. At the city council hearing on Collins’s rezoning application, a number of residents spoke in opposition to the general plan amendment, including members of the Estuary Park Action Committee. City council members discussed the need to preserve 10 acres of open space along the estuary, and debated the feasibility of acquiring land for the planned estuary park. Based on this evidence, the city council could have reasonably concluded that not rezoning the waterfront property for residential use at the present time was compatible with the objectives of the general plan.
E. There Is no Ministerial Duty to Rezone Under the Density Bonus Law
Finally, Collins contends that the trial court erred in failing to enforce the density bonus law. The City does not respond to this argument.
Under section 65915, if a developer agrees to build a project with a certain percentage of very low or low-income housing, the city must grant the developer a “density bonus,” which allows construction of more units than would otherwise be allowed by the applicable zoning ordinance. (§ 65915, subds. (b) & (g).) A city cannot “apply any development standard that will have the effect of precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section.” (§ 65915, subd. (e).)
Collins maintains that the City is using the existing zoning ordinance as a “development standard” to block him from proceeding with his density bonus-eligible project in violation of section 65915, subdivision (e). However, Collins does not cite any authority, and our research has not revealed any, for the proposition that subdivision (e) creates a nondiscretionary duty to rezone a specific property for residential use. This interpretation would lead to absurd results, obligating a city to rezone a property for residential use whenever a developer proposed a density bonus-eligible project for that property, regardless of the property’s current zoning. We conclude that section 65915 does not require rezoning of the waterfront property for residential use.
II. Costs
The trial court denied Collins’s writ of mandate petition as moot, but declared Collins the prevailing party, concluding that Collins’s petition had been successful because the City had rezoned half of his property for residential use after he filed the petition. On cross-appeal, the City contends the court erred in failing to designate it as the prevailing party for the purposes of recovering costs. Collins maintains that the City was not the prevailing party.
Collins “concedes that he has waived his right to costs under section 1032 by failing to file a cost bill within the time limit set by California Rules of Court, former rule 870 (revised and renumbered as Cal. Rules of Court, rule 3.1700, effective January 1, 2007).” Therefore, we do not address Collins’s right to costs, but instead focus on whether the City is entitled to costs.
Although review of an award of attorney fees is generally for abuse of discretion, review is de novo where, as here, “the determination of whether the criteria for an award of attorney fees and costs . . . have been satisfied amounts to statutory construction and a question of law.” (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.)
Code of Civil Procedure section 1032, subdivision (a)(4), defines “prevailing party” to include “a defendant in whose favor a dismissal is entered,” as well as “a defendant where neither plaintiff nor defendant obtains any relief.” Absent a contrary statutory provision, the prevailing party “is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) “[T]he trial court has no discretion to deny prevailing party status to a litigant who falls within one of the four statutory categories in the first prong of the provision.” (Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 975.)
We agree with the City that it is entitled as a matter of right to recover costs as “a defendant in whose favor a dismissal is entered.” (Code Civ. Proc., § 1032, subd. (a)(4).) Collins petitioned for a writ of mandate, and the trial court denied that petition as moot. At the hearing on Collins’s motion, the court stated that it agreed the City had a ministerial duty to rezone the inland property (the property the city had already rezoned), but concluded that the City did not have a ministerial duty to rezone the waterfront property. The court denied Collins the relief sought, and therefore the City is “a defendant in whose favor a dismissal is entered.” Collins contends that the dismissal was not “in favor of” the City, because the matter was found moot. However, Collins cites no authority, and our research reveals none, for the proposition that dismissal of Collins’s action as moot was not “in favor of” the City.
Alternatively, the City qualifies as “a defendant where neither plaintiff nor defendant obtains any relief.” (Code Civ. Proc., § 1032, subd. (a)(4).) Collins argues that he did obtain relief, because by the time of the court’s decision, the city council had rezoned half of his property. However, “relief” in section 1032 of the Code of Civil Procedure is defined as “ ‘assistance, redress, or benefit which a complainant seeks at the hands of the court.’ ” (Childers v. Edwards (1996) 48 Cal.App.4th 1544, 1549.) Although Collins obtained part of the rezoning sought in his petition, this benefit was not “ ‘at the hands of the court.’ ” The City is the prevailing party under Code of Civil Procedure section 1032, and is entitled to costs.
Disposition
The order denying Collins’s petition for writ of mandate is affirmed. The order designating Collins as the prevailing party is reversed, and the matter is remanded for an award of costs to the City. The City is awarded costs on appeal.
We concur. JONES, P.J., GEMELLO, J.
Section 65860 provides:
“(a) County or city zoning ordinances shall be consistent with the general plan of the county or city by January 1, 1974. A zoning ordinance shall be consistent with a city or county general plan only if both of the following conditions are met:
“(1) The city or county has officially adopted such a plan.
“(2) The various land uses authorized by the ordinance are compatible with the objectives, policies, general land uses, and programs specified in the plan.
“(b) Any resident or property owner within a city or a county, as the case may be, may bring an action or proceeding in the superior court to enforce compliance with subdivision (a). Any such action or proceeding shall be governed by Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure [(Writ of Mandate)]. No action or proceeding shall be maintained pursuant to this section by any person unless the action or proceeding is commenced and service is made on the legislative body within 90 days of the enactment of any new zoning ordinance or the amendment of any existing zoning ordinance.
“(c) In the event that a zoning ordinance becomes inconsistent with a general plan by reason of amendment to the plan, or to any element of the plan, the zoning ordinance shall be amended within a reasonable time so that it is consistent with the general plan as amended.
“(d) Notwithstanding Section 65803, this section shall apply in a charter city of 2,000,000 or more population to a zoning ordinance adopted prior to January 1, 1979, which zoning ordinance shall be consistent with the general plan of the city by July 1, 1982.”