California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.

Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, involves judicial review of a decision made by the City refusing to reopen a street previously closed as a result of Caltrans highway improvements. Residents seeking to re-establish the roadway requested that the City reopen the road. After extensive review and public hearings, the City Council certified an EIR, amended the general plan and abandoned the roadway, restricting its use to pedestrian activity only. The appellate court sustained this decision despite evidence indicating a daily use of 16,000 vehicles if the road re-opened. Ruling in favor of the City, the court found that evidence of frequent usage, in and of itself, is not substantial enough to conclude that alternative, equivalent routes available fail to serve the public's best interest. The existence of conflicting evidence is insufficient to undermine the court's conclusion that the City's findings were adequately supported. This determination permitted the City to close the road. Once again, the court followed a deferential line of analysis when reviewing the legal challenge. For developers, this ruling illustrates that often the only practical means of mitigating a traffic impact is to close a road or intersection. This case supports the ability of cities and counties to implement a future road closure as a form of mitigation or general plan policy implementation.

In a similar mode of judicial deference, the Ninth Circuit Court of Appeals upheld a city ordinance limiting operations of adult-oriented retail stores. While the court's consideration of the First Amendment regulatory issues followed long standing precedent, what is worth mentioning is the court's review of the city's amortization schedule. At the time of enacting new ordinances regulating adult themed retail businesses, the City of Spokane adopted an aggressive amortization period, requiring non-conforming uses to conform within 12 months of ordinance adoption by changing the nature of their operations or relocating to different areas. Businesses were provided with no time extension unless a written request was filed one month prior to the amortization deadline and, after review, granted by the planning director. The city's rationale for the ordinance was to regulate the harmful secondary effects associated with sexually-oriented businesses. Justice Kennedy stated that "in doing so, such ordinances requiring businesses to disperse cannot force closure of a number of those businesses, thereby reducing the quantity of that speech... [A secondary effect ordinance must be designed to] leave the quantity of speech substantially undiminished and the total secondary effects significantly reduced." As a result of the phase-out period, many existing regulated uses would have to relocate from their current locations. The federal court had no trouble affirming the relocation requirements, finding that relocation was an adequate alternative means to communication. The city provided sufficient evidence of the detrimental secondary effects of adult stores to validate a substantial governmental interest in regulating them. Although this case involves regulation of First Amendment protected activities, the judicial language regarding the amortization period applies broadly to any regulated land use. While most local governments adopt and follow a fairly lenient strategy for phasing out non-conforming uses, this case shows that such leniency cannot be counted on as a matter of law. World Wide Video of Washington, Inc. v. City of Spokane 368 F.3d 1186 (9th Cir. 2004).

What's the bottom line? As a general rule, courts will defer to the legislative wisdom of cities and counties, as long as the public agencies have followed the procedures set by statute or constitutional authority. In California, the courts do not act as a super-legislative body in oversight of municipal policy making.

William W. Abbott is a partner and Heather Gerken is a law clerk with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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