Under the California Constitution, counties and cities have broad authority to regulate planning and zoning.[1] However, as a recent California Court of Appeal case makes clear, such authority is not unlimited. In Neighbors in Support of Appropriate Land Use v. County of Tuolumne, the appellate court struck down a county’s development agreement with a landowner because it was not consistent with the county’s zoning plan.[2]
In the case, the owners of a 37-acre property in an unincorporated area of Tuolumne County (the “County”) desired to open a business hosting weddings and similar events on their property. The property, however, was in an “Exclusive Agricultural” zone, and such commercial events were strictly prohibited in this zone, with or without a conditional use permit.[3] The landowners submitted an application with the County’s Community Development Department (the “Department”), seeking permission to use the property for commercial purposes.
Although the Department knew that commercial events were not a permitted or conditionally permitted use in the zone, it believed that it could approve the landowners’ application by creating a special exception to the zoning ordinance by way of a development agreement.[4] Based on this understanding, the County’s Board of Supervisors authorized adoption of a development agreement permitting the holding of commercial events on the property, thereby granting the landowners an exception the zoning code. The Board also issued a conditional use permit allowing the landowners to engage in these commercial uses. A neighborhood group challenged the Board’s decision, and the trial court granted a motion for summary judgment in favor of the neighbors.
In its opinion, the Court of Appeal noted that, although cities and counties have broad authority to create zoning and planning rules, there are limitations to that authority. One such limitation is the uniformity requirement found in Government Code Section 65852, which states: “All such [zoning] regulations shall be uniform for each class or kind of building or use of land throughout each zone …” In other words, cities and counties must create and enforce rules that are the same for each parcel within a zone.
The Court of Appeal reasoned that a uniformity requirement protected the integrity of zoning: “The foundations of zoning would be undermined … if local governments could grant favored treatment to some owners on a purely ad hoc basis. Cities and counties unquestionably have the power to rezone and their decisions to do so are entitled to great deference; but rezoning, even of the smallest parcels, still necessarily respects the principle of uniformity.”[5]
The County argued that laws permitting development agreements gave it authority to allow for the conditional use. The court, however, noted that development agreement law did not create exceptions to the uniformity requirement of Section 65852. Thus, “[t]he development agreement law does not authorize cities and counties to create forms of zoning disuniformity they otherwise lack authority to create.”[6]
It is important to note that the opinion is limited to the facts of the case: an ad hoc exception to use restrictions in the existing zoning. The court noted that it was not dealing with a rezoning granted with conditions. The opinion does not prohibit a development agreement imposing additional use limitations on a developer as part of a bargained exchange for a rezoning.[7] Nor does the opinion prohibit a development agreement in which the local body asks for performance of an action as a condition of a rezoning.[8]
Cities and counties should take note that, according to the court, this is the first time a court has invalidated an ordinance because it conflicted with Section 65852’s uniformity requirement. Local bodies responsible for zoning and planning must be aware that this Section demands uniform regulations for each class or kind of building or use of land in each zone.
For more information regarding land use and zoning law, contact Matthew Gorman at 562.699.5500.
[1] Cal. Const., art. XI, § 7.
[2] Case # F051690IN, California Court of Appeal (5th App. Dist) (filed Dec. 7, 2007)
[3] Tuolumne County Ord. Code, § 17.08.010.
[4] See Gov. Code § 65864 et seq. (development agreement law).
[5] Case # F051690IN, California Court of Appeal (5th App. Dist) (filed Dec. 7, 2007)
[6] Id.
[7] J-Marion Co. v. County of Sacramento, 76 Cal.App.3d 517 (1977).
[8] Scrutton v. County of Sacramento, 275 Cal.App.2d 412 (1969).
