By Bryan Wenter
Land use law governs how the physical form of communities change, develop, and adapt to meet the present and future needs of their residents. Understanding local governments' broad power to enact and enforce land use planning laws is essential to attorneys and bench officers dealing with this area of law.
The objective of this article and self-study test is to provide an introduction to land use law. Readers will learn about local governments' power, plans, zoning authority, and subdivision maps; private entities' vested rights; and local governments' duty to adequately plan to meet the existing and projected housing needs of all economic segments of the community.
Local government entities guide their physical growth and development through local land use planning. This planning covers a wide range of activities, from developing vacant land, to adapting existing structures for new uses, to redeveloping individual parcels and whole neighborhoods with new buildings and facilities.
The legal basis for all land use regulation is the police power of a city or county to protect the public health, safety, and welfare of its residents. See Berman v. Parker, 348 U.S. 26 (1954). The California Constitution also provides a broad grant of authority to counties and cities: "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." Cal Const art XI, Section 7.
Police power includes land use regulation if it is reasonably related to the public welfare. See Associated Home Builders Inc. v. City of Livermore, 18 Cal.3d 582 (1976), example, police power allows a zoning ordinance to directly affect economic competition if the ordinance promotes a legitimate public purpose. Hernandez v. City of Hanford, 41 Cal.4th 279 (2007). The police power also allows cities to adopt zoning ordinances that protect their character, stability, and soul. Ewing v. City of Carmel-by-the-Sea, 234 Cal.App.3d 1579 (1991).
Although California has enacted statewide planning and zoning laws (government Code Section 65000 et seq), these are meant to be minimally restrictive of local authority. "[T]he legislature declares that in enacting this chapter it is its intention to provide only a minimum of limitation in order that counties and cities may exercise the maximum degree of control over local zoning matters." Government Code Section 65800.
Cities and counties enact general and specific plans to govern development. These plans are intended to work together to ensure orderly change and growth in a community.
A general plan is a comprehensive, long-term plan for the development of a city or county, including any land outside its boundaries that it believes is related to its planning. The general plan consists of a statement of development policies and includes a diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals. It is a comprehensive long-term plan for the physical development of the county or city. The general plan must contain seven elements (i.e., land use, circulation, housing, conservation, open space, noise, safety), and it may also contain additional elements (e.g., urban design, economic development) that a city or county chooses to adopt. Government Code Sections 65302, 65303. The legislative body of the county or city may amend any mandatory element of the general plan, but no more than four times per year.
In California, the general plan is the constitution, or "blueprint," for development. Accordingly, all zoning and land-use decisions must conform to the general plan (i.e., vertical consistency). See Lesher Communications Inc. v. City of Walnut Creek, 52 Cal.3d 531 (1990). In addition, the terms of each element must be internally consistent (i.e., horizontal consistency). Government Code Section 65300.5; Sierra Club v. Board of Supervisors, 126 Cal.App.3d 698 (1981).
A city may also, but is not required to, adopt one or more specific plans to systematically implement its general plan. Government Code Section 65450. A specific plan is the tool to systematically implement the general plan. Accordingly, a specific plan must contain more detail than a general plan relating to land uses, major infrastructure, development and conservation standards, and an implementation program, and a specific plan usually covers only certain areas of a community. Government Code Section 65451(a). A specific plan must include a statement of the relationship of the specific plan to the general plan. Government Code Section 65451(b)
Zoning is the separation of a community into use districts or zones that regulate the use of land and the intensity of development. Government Code Section 65851. Comprehensive zoning regulations are allowed under the police power. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
Whatever form of zoning a community adopts, its zoning ordinance must be consistent with the general plan and is invalid if inconsistent. Government Code Section 65860; Building Indus. Ass'n of San Diego v. City of Oceanside, 27 Cal.App.4th 744 (1994).
Traditional "Euclidian" zoning ordinances, under Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), list land uses that are allowed "by right" (sometimes called "permissible" land uses) along with land uses that are conditionally allowed within each zone. The term "by right" does not mean that the zoning ordinance confers an unconditional right, or entitlement, to develop a particular land use but rather that a project will be ministerially approved if it meets prescribed development standards, such as building height and bulk, setbacks, lot coverage, parking, signage, and landscaping. For these allowed land uses, no discretionary review is required.
Conditional land uses are land uses that are not permissible land uses. These conditional land uses may be approved under a zoning ordinance but only if the use meets specific conditions associated with the use, as determined by the planning commission or legislative body of the local agency. Conditions of approval are drafted by city staff and become effective upon the approval by the final decision-making body for a given permit. These conditions are imposed to implement general plan policies or zoning requirements or to mitigate the impacts of a given development. They must relate to the property or its use and not to the particular applicant. Anza Parking Corp. v. City of Burlingame, 195 Cal.App.3d 855 (1987).
A variance is a limited waiver of zoning standards for a use that is already permitted within a zone. A variance may only be approved in extraordinary circumstances when the physical characteristics of a property (such as size, shape, topography, location, or surroundings) or its use pose a unique hardship to the property owner. Government Code Section 65906. Economic hardship alone, however, is an insufficient justification to approve a variance. In addition, a variance cannot be used to permit a land use that is not otherwise allowed in a zoning district, such as an industrial use within a residential zone. A landowner seeking such relief must apply to the city council for a zoning amendment. See Neighbors in Support of Appropriate Land Use v. County of Tuolumne, 157 Cal.App.4th 997 (2007).
Form-based zoning ordinances are a modern alternative to traditional zoning. Under form-based zoning, the physical form or character of a project (such as height, footprint, materials, or relationship to other buildings) is regulated rather than the specific uses (such as residential or commercial). Government Code Section 65302.4. The objective is to use zoning to ensure compatibility while allowing a greater mix of uses than allowed under traditional zoning. In essence, a form-based code places more emphasis on the design and form of buildings and less on the uses that occur inside the buildings.
The Subdivision Map Act regulates the division of land into separate parcels for sale, lease, or financing. Government Code Sections 66410 et seq. The Map Act requires cities and counties to regulate and control the initial design and improvement of subdivisions that contain five or more parcels. Government Code Section 66411. Different approval requirements apply depending on the size of a proposed subdivision. A tentative map containing detailed conditions of approval and a final map are required for all subdivisions creating five or more parcels. Government Code Section 66426. A parcel map with more limited conditions is required for subdivisions of four or fewer parcels. Government Code Sections 66463, 66445(e). Subdivision maps show how the parcels will be laid out. Other information includes public streets, sidewalks, parks, utilities, grading, drainage, and other improvements in the subdivision. State law has a number of rules relating to conditions of map approval, including conditions relating to bike paths, transit facilities, school fees, solar energy, and parkland. The environmental review process may produce additional conditions.
Cities and counties may only approve a subdivision map if it is consistent with the general plan and any applicable specific plan, and they must deny a map if it makes certain specified findings. Government Code Section 66474. Additional conditions of approval may be imposed to ensure the map is consistent with the general plan and the zoning.
Cities and counties can usually change land use regulations at any time, even if such changes prevent the use of approvals previously granted. Several types of vested rights, however, protect the investment-backed expectations of developers. A developer who has performed substantial work and incurred substantial liabilities in good faith reliance on a development permit acquires a vested right to complete construction in accordance with the terms of the permit. See Avco Community Developers Inc. v. South Coast Regional Comm'n, 17 Cal.3d 785 (1976). The Subdivision Map Act allows subdividers to seek a vesting tentative map under which a subdivider may proceed with development in substantial compliance with local ordinances, policies, and standards in effect at the time the vesting tentative map application is deemed complete. Government Code Sections 66498.1 et seq.
Developers may also obtain vested rights through a development agreement, a bilateral contract negotiated between the developer and a city or county. Government Code Section 65864 et seq; see also SMART v. County of San Luis Obispo, 84 Cal.App.4th 221 (2000). Under a development agreement, the rules, regulations, and policies governing permitted uses, density, design, improvements, and construction are locked in at the time the agreement is executed.
The Legislature has declared housing availability a matter of "vital statewide importance" and stated that the provision of "decent housing and a suitable living environment for every Californian, including farmworkers, is a priority of the highest order." Government Code Section 65580(a). Accordingly, state law mandates the provision of affordable housing to all economic segments, particularly low-income and moderate-income households. Government Code Sections 65580, 65913, 65915, 65008.
The housing element of a general plan requires a needs assessment that assesses the city's existing and projected housing needs. This needs assessment must assess the special needs of the elderly, the disabled, female-headed households, large families, farmworkers, homeless persons, families, and emergency shelters. Government Code Section 65583(a). A housing element must also contain a land inventory that identifies adequate sites to provide for the housing needs at all income levels. Government Code Section 65583(a)(3).
Under the anti-NIMBY (not in my back yard) provisions in state law, cities have limited discretion to reject affordable housing projects. Before denying a development application for affordable housing or imposing conditions that render such a project infeasible, cities and counties must make one or more of certain specified findings. See Government Code Section65589.5.
The Legislature's policy choices have generally elevated housing, in terms of importance, above all other uses of land in California. This policy preference for housing is exemplified in many ways, including several legislatively approved exceptions to the consistency doctrine that is usually required between the housing element and every other element in a general plan. For example, if a project is proposed for a site that the housing element designates for low-income housing and it is consistent with the density required in the housing element, a city cannot deny the project based upon its inconsistency with the general plan or the zoning ordinance. Government Code Section 65589.5. In addition, the state density bonus law allows developers to increase the density in a project above the otherwise maximum allowable limit under the general plan and zoning ordinance. Government Code Section 65915(a); see also Friends of Lagoon Valley v. City of Vacaville, 154 Cal.App.4th 807 (2007).
Bryan Wenter is the Walnut Creek City Attorney.