General Plan and Land Use Regulations

• Nuisance refers to interference with the use and enjoyment of property.

Blueprint for Land Use

• The blueprint is composed of several elements.
• The constitution limits governmental authority.
• State Enabling Laws provide specific mandates for government action.
• The General Plan functions as the "constitution for all future developments."
• Zoning controls density and land use.
• Subdivision manages infrastructure.
• Building Permits ensure safety.
• Individual Action covers what is left unaddressed by the other elements.

General Plans: Adoption and Amendments

• Land use decisions are void ab initio if a general plan is not properly adopted.
• Article 6 provides guidelines for adoption.
• Cities and counties must adopt plans in accordance with Article 6, outlined in section 65350.
• Section 65351 emphasizes public involvement through hearings and other means.
• Before adoption, referrals must go to directory referrals, abutting districts, schools, LAFCO, regional planning agencies, and affected federal agencies, establishing a 45-day comment period per 65352.
• The planning commission must hold at least one public hearing before recommending the plan as per section 65353.
• A hearing notice must be published in the local newspaper at least 10 days beforehand.
• If a decision impacts property use or intensity, notice must be mailed to affected property owners, unless the number exceeds 1000, in which case newspaper notification is sufficient.
• The planning commission must approve recommendation to the legislative body by a majority vote of its members.
• An appeal procedure exists for amending the plan.
• The legislative body must hold a public hearing before adopting the plan.
• Changes should be referred back to the planning commission for 45 days.
• Copies of the plan must be available to the public.
• Amendments are limited to four times per year, except for affordable housing.
• The cost is paid by the person requesting the change.
• Specific plans must be consistent with general plans.
• Adequacy of a plan includes being comprehensive, long-term, internally consistent, having compatible policies, and addressing all required elements.
• Plans must meet the requirements of S65302.
• All elements have equal status.
• Optional elements are acceptable but gain equal status.
• Plan structure should remain flexible.
• The plan should correlate to growth control.
• New cities or counties must adopt a plan within 30 months of incorporation.
• Land use decisions should be reasonable and consistent during this period.
• A preparation time extension of up to one year may be granted for needed data, staff shortages, or disasters extending a public review.
• Denied time extension can be appealed to the Planning Advisory & Assistance Council.
• An EIR (Environmental Impact Report) must be prepared.
• After adoption, the planning agency should recommend implementation measures.
• Proposed public works are to be examined each year in light of the plan.
• Restrictions on land acquisition must align with the plan.
• Capital Improvement Plans have a 5 year outlook.

Specific Plans

• Specific plans offer systematic implementation of a general plan.
• Specific plans should cover infrastructure, land uses, implementation, and their relationship to the General Plan (GP).
• Any subject relevant to GP implementation may be addressed.
• GP adoption amendment mirrors the general plan.
• Plans, public works, and zoning need vertical consistency.
• Plans must be consistent with the general plan.
• Fees can be imposed, prorated based on a project’s value from a specific plan.
• An EIR is not required for residential subdivisions.

Vertical & Horizontal Consistency in Planning

• Vertical consistency requires that all land use decisions align with the general plan.
• Horizontal consistency requires that all elements of a general plan are consistent with each other.

Judicial Review

• Judicial Review of a General Plan is limited.
• Judicial Review is limited to whether actions were arbitrary, capricious, or lacked any evidentiary support.
• The statute of limitations for challenges to GP adoption is 90 days.
• Government code S. 65750 controls actions brought against general plans.
• Projects may be approved under an inadequate general plan if they do not significantly impair the process of creating a new general plan.

Litigation Issues

• Standing refers to the right to sue.
• Steps in a lawsuit include pleadings, discovery, and motions.
• Settling claims has an effect on the law.

Zoning History

• Zoning history includes early height regulations were established in Boston (1904).
• Residential and industrial districts emerged in Los Angeles (1909).
• Building zone resolutions appeared in New York City (1916).
• By 1922, 20 states and 50 cities had implemented zoning.
• By 1926, These numbers increased to 43 states and 420 cities.
• The landmark case of Euclid v. Ambler was decided in the US (1926).

Regulation Uses

• Regulation uses are based on:
• Police power, which is constitutional.
• Nuisance, which falls under common law.
• Regulations aim for health, safety, and welfare using separation and mitigation approaches.
• Regulation limitations involve due process and takings.
• Regulation is determined by height, bulk, and dimensional considerations.

Judicial Review & Sufficiency Standards

• Wisdom is a matter for the Legislature
• Legislation will only be overturned if the decision is palpably wrong.
• The Legislature is a coordinate branch of government and not a lower tribunal.
• The only function is to determine if the Legislature exceeded constitutional limitations.
• Records only need to show a reasonable basis for decisions.
• Zoning ordinances cannot be so vague that interpretation is guesswork.
• Motives behind zoning are immaterial.
• There must be a relationship to public welfare.
• Zoning must be consistent with the general plan.
• Zoning must adhere to due process requirements.
• Variances are grounded in unique, physical conditions of property causing hardship.
• Variances should have no adverse effects on nearby property.
• Variances should be consistent with the general plan and zoning.
• A peculiar situation that is not a special privilege should be apparent prior to granting a variance. Variances are rare.

Conditional Use Permits (CUP)

• Conditional Use Permits are a flexible zoning tool, which are discretionary.
• Not all uses are suitable for all lots, CUPs can add conditions to solve local issues.
• Gas stations commonly use Conditional Use Permits.

Pre-Existing Nonconforming Use Standards

• Standards include not being too high, having the wrong setback, and an inability to expand the non-conformity.
• Structural changes are permissible for safety.

Market Forces & Land Use Regulation

• Regulation is considered undesirable intervention.
• Negative externalities are market failures correctable via regulation.
• Regulation will override market-expressed preferences due to externalities.
• Pareto optimality is considered in regulation.
• Transaction costs are considered in regulation.

Subdivision Map Act

• Subdivision issues involve: considerations for denial, merger, tentative maps, improvement, annexations, statue of limitations and amendments to maps.
• Each city needs to adopt subdivision ordinances that can go beyond the Act for orderly development and fraud prevention.
• This evolved into complex conditions.
• The planning commission, city council, or a designated body can approve maps.

Parcel Maps

• Parcel Maps do not rate a full subdivision review in certain cases.
• These cases involve:
  • Four or fewer parcels.
  • Divisions of less than five acres on a road.
  • Twenty-acre-plus parcels on a road.
  • Industrial and commercial developments on a road.
  • Parcels greater than 40 acres or ¼ of a quarter section.

Final Map Process

• The process for final maps is a two step process.
• The map is not detailed, provides a basis for decisions and details changes/conditions attached.
• The Final Map leads to a ministerial approval contingent upon substantial compliance with the tentative approval.

Vesting Tentative Map

• The words "Vesting Tentative Map" must be written.
• A developer can proceed based on regulations in place at the application completion time.
• Municipalities should not unreasonably delay applications.
• Denial of map grounds includes being inconsistent with the general plan.
• Site unsuitability and designs causing substantial environmental damage are grounds for denial.
• Maps conflicting with public easements are grounds for denial.
• Vesting provides permit protection against regulatory changes.

Improvement Security

• Examples of improvement security includes bonds, cash deposits, instruments of credit, and property liens.
• Other city-acceptable means are also viable.
• The amount for security should be between 50% and 100% of total estimated cost.

Merger of Lots

• Requirements needed to consider a merger of lots with the same owner is if here is Notice and hearing is required.
• At least one lot has no building and it has less than 5,000 sqft or not created in compliance with law.
• Does not meet sewer & water standards, or slop requirements, or no legal access or would create health or safety hazard

Certificates of Compliance

• Certificates of Compliance are a Request to determine if parcel complies with Subdivision Map Act.
• Used mostly to prove old parcels, especially before act was adopted
• Recently used to increase development rights
• Gov Davis recently signed legislation prohibiting the lot line adjustment of more than 4 parcels with certificates.

Various Land Use Protections

• Land use protections include design review, historic preservation, agricultural preservation, coastal zone management, and water supply planning.
• Design review involves Pacifica vs. Novi, limits of "general welfare," as well as local regulations.
• Historic preservation includes the National Historic Preservation Act and the California State Historic Preservation Officer.
• The SHPO oversees listed properties and the listing of new historic resources, as well as Native American preservation efforts.
• Agricultural preservation involves Williamson Act contracts, property tax valuation, and right to farm initiatives.
• SOAR (save our agricultural resources) programs such as Ventura County and Napa County require a popular vote to convert agricultural land.
• Coastal zone management involves CZMA (1972), the Coastal Act (1972), LCPs, CDPs, CZMA consistency determination, and defining the coastal boundary.
• Water supply planning includes SB 610 - Water supply assessment for cities, counties, and districts needing large projects and planning and SB 221 - Water supply verification.
• Larger subdivision maps need to perform Water supply planning
• Rancho Cordova isn’t required to prove supply, but needs reasonable certainty.
• Storm water management includes the Clean Water Act, NPDES, Porter Cologne Act, general construction permits, BMPs, and LIDs.

Congestion Management Plans

• Congestion management plans are created via ballot initiative and result in a Congestion Management Agency for each country.

Public Building

• Public Building requirements include Prevailing wage laws.
• Public works projects must be paid for in whole or in part with public funds to maintain local wage competitiveness.
• Public building projects require Public bidding on private developments is required, such as those including schools.

Constitutional Principles: Equal Protection

• The 14th Amendment states that no state shall deny any person equal protection.
• Supreme Court tests include:
  • A rational relationship to legitimate government purpose for most land use laws.
  • Intermediate scrutiny for quasi-suspect classes, requiring a substantial relationship to important government interest.
  • Strict scrutiny applies when classification impacts constitutional interest (free speech) or is suspect (race, religion.)

Freedom of Speech

• Communication can't be regulated unless it's unprotected speech.
• Allowed: regulating non-communicative aspects of speech (unless the communicative part is affected).
• Test for incidental restriction includes if regulation is within constitutional power and furthers important government interest.
• Furthermore, the government interest shouldn't aim to suppress speech, and the restriction must be minimal.
• Government can restrict the time/place/manner of speech if:
  • Restrictions don't discriminate based on content.
  • Restrictions don't unreasonably limit expression in public forums.
• The First Amendment safeguards both commercial and non-commercial speech, with regulations being content-neutral; the court distinguishes between:
  • Speech addressing political, social, or philosophical concerns.
  • Speech advertising.
• Courts cannot write vague or overly broad regulations.
• Prior restraint is presumed unconstitutional.

Establishment Clause

• The Establishment Clause prohibits government sponsorship of religion, guided by a 3-part test:
  • The action must have a secular purpose.
  • Its primary effect must be secular.
  • There must be no excessive entanglement between government and religion.

Free Exercise Clause

• The following prevents the government from acting in ways that prohibit an individual from holding religious beliefs.
• Test:
  • Does the government action substantially burden the practice of religion?
  • If so, is the burden justified by an overriding government interest?
  • Can the religious belief be accommodated without undue interference?
• Example: barring churches from residential areas, religious schools, home worship, and landmark designation.
• Other important items:
  • Supremacy clause
  • Levels of government
  • Airport land use commission
  • Interim ordinance
  • LAFCO (Local Agency Formation Commission)
  • Annexations
  • Pre-existing, non-conforming use

Housing & Growth Control

• Housing & Growth control involves:
  • Growth management to modify market forces.
  • Planning to meet new development needs.
  • Infrastructure and services of many forms.
• The purpose of ordinances is to promote timed growth to maintain development within the town's capabilities; not to freeze present levels.
• Types of growth control mechanisms include:
  • Growth caps & moratoria (interim ordinance)
  • Staged growth (limits on permits/year)
  • Rezoning (direct residential or indirect commercial/industrial impacts)
  • Regulation
  • Urban edges
  • Bureaucracy
• Moratorium = interim ordinance temp halt to development, To fix a problem, Cali - strictly regulated, called an interim ordinance
• HCD (Housing and Community Development) test for California ordinances involves measuring based upon demonstrated constraints, area needs, steps to relieve problems, and sunsetting constraints.
• The burden shifts where Modification to general plan which serve to limit growth must have findings which include:
  • Cities regional fair-share housing needs
  • Description of specific housing programs in effect in jurisdiction
  • How health, safety and welfare promoted
  • Fiscal and environmental resources avail Regional fair share housing requires jurisdictions to facilitate housing production by ensuring land availability and removing constraints. Exclusionary zoning creates parcels that exclude classes of people.
• The Fair Housing Act (1968) prohibits discrimination in real estate transactions based on race.
• Redlining (1968) is the practice of banks and other organizations refusing to grant loans/open businesses in certain areas.

Brown Act

• The Brown Act applies to a Legislative body of local agencies: gov body, commission, board or other body.
• The Act states that meetings must be open to the public.
• The act defines "meeting" as:
  • Any congregation of a majority of members.
  • At the same time and place.
  • To hear, discuss, deliberate, or take action upon any item.
• Exceptions include individual contacts between members and other persons and conferences.
• The Act includes notice of meeting requirements:
  • Regular meetings at a set time within the agency territory.
  • Agendas posted 72 hours prior and mailed to those requesting notice.
  • Special meetings require 24-hour notice.
• Agenda requirements include stating:
  • The time and place of any meetings.
  • A brief description of each item.
  • Posting in public.
  • No action can be taken on any item unless it is on the agenda.
  • Provides opportunity for public comments.
• Closed sessions include:
  • No private discussions/votes unless specifically authorized
  • A list of authorized uses includes: conferences with legal counsel, real property negotiators, personnel matters, and labor negotiations.
  • All actions taken during closed sessions must be reported.