Land Use Midterm Study Guide PDF

Introduction Nuisance: interference with the use and enjoyment of property The blueprint for land use: -​ Constitution (Limits of gov authority) -​ State Enabling Laws (specific mandates for gov action) -​ General Plan (“The constitution for all future developments”) -​ Zoning (contr...

Introduction Nuisance: interference with the use and enjoyment of property The blueprint for land use: -​ Constitution (Limits of gov authority) -​ State Enabling Laws (specific mandates for gov action) -​ General Plan (“The constitution for all future developments”) -​ Zoning (control over density and use of land) -​ Subdivision (Infrastructure management) -​ Building Permit (Safety) -​ Individual Action (Whatever's left) General Plans Procedure for adoption of general plan and subsequent amendments: *If not properly adopted, land use decisions void ab initio -​ Article 6 -​ 65350 Cities and counties shall adopt in accordance with this article -​ 65351 Opportunities for public involvement through hearings etc -​ 65352 Before adoption, directory referrals, abutting districts, schools, LAFCO, regional planning agency, affected federal agencies 45 DAY COMMENT PERIOD -​ 65353 Planning commission must hold at least one public hearing before recommendation of plan -​ NOTICE of hearing shall be published in the local newspaper at least 10 days before hearing. If decision affects property use or intensity of use, then must mail notice to owners of affected property unless number > 1000 then newspaper. -​ Planning commission must vote by majority of membership their recommendation to the legislative body -​ Appeal procedure for amendment of plan -​ Prior to adopting, legislative body shall hold public hearing -​ Changes shall be referred back to planning commission, 45 days -​ Copies of plan must be available for public -​ Amendments, no more than FOUR TIMES PER YEAR except affordable housing. Cost paid by person requesting change -​ Specific plans consistent with general plans Adequacy of a plan: -​ Comprehensive & long term -​ Internal consistency, compatible statement of policies -​ Address all required elements  -​ Meet requirements of S65302 Basic Rules of GP: -​ All elements have equal status -​ Optional elements are OK but gain equal status -​ Plan structure is flexible -​ Should relate growth control to plan Requirements for a new city or county -​ Must adopt a plan within 30 months of incorporation. Land use decisions may still be made so long as they are reasonable and likely to be consistent. -​ Time extension for new cities -​ Preparation time may be extended up to one year if data is needed, insufficient staff, disaster extended public review -​ Can appeal denied of time extension to Planning Advisory & Assistance Council. -​ EIR must be prepared Administration of GP: -​ After adoption, planning agency shall recommend implementation measures -​ Proposed public works shall be examined in light of plan each year -​ Restrictions of acquisition of land must be consistent with plan -​ Capital Improvement Plans: 5 year Specific Plans -​ For systematic implementation of general plan -​ Contents of specific plan: infrastructure, land uses, implementation measures, relationship to GP. -​ May address any subject relevant to the implementation of the gp -​ Adoption amendment is same as for general plan -​ Must be consistent with gp -​ Vertical consistency of plans, public works and zoning -​ Fees may be imposed, prorated to value of project from specific plan -​ No EIR required for a residential subdivision Vertical & Horizontal Consistency: -​ Vertical: all land use decisions must be consistent with the general plan -​ Horizontal: all elements of general plan must be consistent with each other Judicial Review of General Plan: -​ Limited to whether action was arbitrary, capricious or completely lacking in evidentiary support -​ Statute of limitations for challenges adoption of GP = 90 days -​ Gov’t code S. 65750 controls actions brought against gp  -​ Projects may be approved under inadequate gp if they will not significantly impair the new gp process. Litigation Issues: -​ Standing ~ the right to sue -​ Steps in lawsuit: pleadings, discovery, motions -​ Settling claims, effect on law Zoning A complete history of zoning: -​ 1904: height regs in Boston -​ 1909: res & ind districts in LA -​ 1916: bldg zone res in NYC -​ 1922: 20 states and 50 cities -​ 1926: 43 states, 420 cities -​ 1926: Euclid v. Ambler (US) Regulation Uses: -​ Basic: -​ Police power (constitutional) -​ Nuisance (common law) -​ Purpose: health, safety welfare -​ Approach: separation, mitigation -​ Limitations: due process, takings -​ Height & bulk: dimensional regulations Judicial Review: -​ Wisdom is a matter for the Legislature -​ Will not set aside legislation unless the feel the decision is palpably wrong -​ Legislature is a coordinate branch of gov - not a lower tribunal -​ Only function is to determine if Legislature exceeded constitutional limitations -​ Record need only show reasonable basis Sufficiency Standards: -​ Zoning ordinance cannot be so vague that we must guess meaning -​ Motives: immaterial -​ Relationship to public welfare -​ Consistent with gp -​ Due process requirements Zoning relief: -​ Variances ground: -​ Unique, physical conditions of property, causing hardship to owner  -​ No adverse effects on nearby property -​ Consistent with gp & zoning -​ Peculiar situation does not automatically necessitate granting variance -​ Cannot constitute a “special privilege” -​ Variances are rare -​ Conditional Use Permit: -​ Flexible zoning -​ Are discretionary -​ Not all uses are appropriate on all lots -​ Can add conditions to solve local issues -​ Gas stations are common for C.U.Ps -​ Pre-existing nonconforming use -​ Too high -​ Wrong setback -​ Cannot expand the non-conformity -​ Structural changes are ok for safety Market forces and land use regulation -​ Regulation = undesirable intervention -​ Negative externalities -​ Overriding market-expressed preferences -​ Pareto optimality -​ Transaction costs Subdivision Map Act Subdivision Issues -​ Grounds for denial -​ Merger -​ Life of tentative maps -​ Improvement security -​ incorporation/annexation -​ Statue of Limitations -​ Amendments to maps Subdivision Ordinance -​ Each city must adopt subdivision ordinances -​ Ordinance can go beyond the Act -​ Purpose: orderly development and fraud prevention -​ Process has evolved into complex array of exactions and conditions -​ Planning commission, city council or some other designated body can approve maps Parcel Maps -​ These do not rate full subdivision review -​ Four or fewer parcels -​ Divisions 40 acres or >¼ of quarter section Tentative & Final Map -​ Two step process -​ Tentative map: -​ Not detailed -​ Provides basis for decision -​ Changes made, conditions attached -​ Final Map: -​ Ministerial approval -​ Must substantially comply with tentative approval Vesting tentative Map -​ Write the words “Vesting Tentative Map” -​ The developer can proceed with project in accordance with the regulation in place at the time that application is complete -​ Municipality cannot unreasonably delay application Grounds for denial of a map -​ Inconsistent with gp -​ Site not physically suited for type or density of development -​ Design is likely to cause substantial environmental damage -​ Map will conflict with public easements for access -​ Vesting - permit protection against regulatory changes -​ Statute of limitations Improvement security -​ Examples: -​ Bonds -​ Cash deposits -​ Instrument of credit -​ Property lien -​ Other any means acceptable to the city -​ Amount = between 50% and 100% of total estimated cost Merger of lots (same owner) Requirements:  -​ Notice and hearing -​ 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 -​ Request to determine if parcel complies with Subdivision Map Act -​ Mostly used 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 Protections for Land Use Design review -​ Pacifica vs novi -​ Limits of “general welfare” -​ Local regulations Historic preservation -​ National historic preservation act -​ California state historic preservation officer -​ SHPO - oversees listed properties and the listing of new historic resources -​ Native american preservation efforts Agricultural preservation -​ Williamson act contracts -​ Property tax valuation -​ Right to farm - to overcome urban/rural conflicts -​ SOAR - save our agricultural resources -​ Ventura county, napa county -​ Requires popular vote to convert ag land Coastal zone management -​ Czma (1972) -​ Coastal act (1972) LCPs and CDPs -​ CZMA consistency determination -​ Coastal boundary Water supply planning -​ SB 610 - Water supply assessment -​ Cities, counties, district need for large projects and planning purposes -​ SB 221 - Water supply verification  -​ For larger subdivision maps -​ Rancho cordova - don't have to prove supply but need reasonable certainty Storm water management -​ Clean water act -​ NPDES -​ Porter cologne act -​ General construction permits -​ BMP’s -​ LID’s Congestion management plans -​ Ballot initiative created congestion Management Agency for each country Public Building -​ Prevailing wage law -​ Public works project = work paid for in whole or in part with public funds -​ To keep wages competitive locally, so no incentive to bring in cheaper labor -​ Public bidding on private developments -​ Ex. big development includes schools Constitutional Principles Equal protection -​ 14th amendment: no state shall deny any person equal protection Supreme court tests -​ Rational relationship: economic interests of land must have a rational relationship to a legit gov purpose, applies to most land use laws -​ Middle tier: quasi-suspect classes like gender or illegitimacy, classification must have substation relationship to an important gov interest, rarely used and not applied in land use cases -​ Strict scrutiny: applied when classification affects constitutional interest (free speech) or when the classification is suspect (race,religion). Freedom of speech -​ Communication cannot be regulated unless non-protected speech -​ Non communicative OK to regulate unless there is incidental restriction of communicative aspect then test -​ Test: incidental restriction of speech is OK if -​ Regulation is within gov constitutional power -​ Further important gov purpose -​ Gov interest not related to suppression of speech -​ Incidental restriction is minimal to further interest  -​ Gov can restrict time, place or manner of speech so long as: -​ Restrictions do not make distinction based on content -​ They do not unreasonably limit expression in a traditional public forum -​ 1st amendment protect both commercial and non commercial speech, -​ regulations must be content neutral, however court distinguishes between -​ Speech that addresses political, social or philosophical concerns -​ Speech that advertises -​ Cannot write vague or overly bros regulation -​ Prior restraint presumed to be unconstitutional The Establishment Clause: prohibits gov sponsorship of religion, 3 part test -​ Must have secular purpose -​ Its primary effect must be secular -​ No excessive entanglement between gov and religion Free exercise clause: prevents gov from acting so as to prohibit an individual from holding religious beliefs -​ Test: -​ Does the gov action substantially burden the practice of religion -​ If so, is burden justified by overriding gov interest and can religious belief be accommodated without undue interference -​ Ex. barring churches from residential areas, religious schools, home worship and landmark designation Other important items: -​ Supremacy clause -​ Levels of gov -​ Airport land use commission -​ Interim ordinance -​ LAFCO -​ Annexations -​ Pre-existing, non-conforming use Housing & Growth control Growth management -​ Purpose: to modify the market forces of development -​ Planning: to keep pace with needs of new development -​ Infrastructure, services, takes many forms Ruth Golden v Town of Ramapo NY  -​ Purpose of the ordinance is to promote timed growth to assure development within the town’s capabilities -​ The town does not seek to freeze pop at present levels but seeks to bring about the efficient use of land Types of growth control -​ Growth caps & moratoria (interim ordinance) -​ Staged growth (x of permits/year) -​ Rezoning -​ Residential (direct) -​ commercial/industrial (indirect) -​ Regulation -​ Urban edges -​ Bureaucracy Moratorium = interim ordinance -​ Temp halt to development -​ To fix a problem -​ Cali - strictly regulated, called an interim ordinance HCD test for ordinances: California department housing & community development -​ Measured based upon demonstrated constraint -​ Are max above area’s needs -​ Taking steps to relieve the problems -​ Encourage affordable housing development -​ Limit non-residential -​ Sunset upon end of constraint The burden shifts: Modification to general plan which serve to limit growth must have findings -​ Growth limitation ordinance findings: -​ 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: jurisdiction is not required to make development happen but it must facilitate housing production by ensuring land is available and constraints are removed exclusionary zoning: creating a land use regulation that creates parcels so expensive it excludes ower income and perhaps excludes suspect classes -​ Fair Housing Act (1968): prohibits discrimination in any real estate transaction based upon race -​ Redlining (1968): used by banks and other organization to identify areas to not grant loans/open businesses Brown Act -​ Legislative body of local agencies: gov body, commission, board or other body -​ Basic premise: meetings must be open to public -​ What is a meeting: -​ Any congregation of majority of members -​ At the same time and place -​ To hear, discuss, deliberate or take action upon any item -​ Exceptions: -​ Individual contacts between members and other persons -​ Conferences -​ Notice of meeting required -​ Regular meeting time -​ Within territory of local agency -​ Agenda posted 72 hours prior and mailed to people who request notice -​ Special meeting: 24 hour notice -​ Agenda requirements: -​ State time and place -​ Brief description of each item -​ Posted in public -​ No action unless item agendized -​ Opportunity for public comments -​ Closed sessions -​ No private discussions/votes unless specifically authorized -​ Conference with legal counsel -​ Conference with real property negotiator -​ Personnel matters -​ Labor negotiations -​ Must report out any action taken