By Joel Ellinwood, AICP

The Court of Appeal, Fifth Appellate District, continues this year’s deluge of land use and environmental law decisions by revisiting the first principles of planning and zoning law in Neighbors in Support of Appropriate Land Use v. Tuolumne County (2007) 2007 Cal.App.Lexis 2004, filed and certified for publication on December 7, 2007. The court held that a development agreement between the property owner and the County to authorize a use otherwise prohibited in the same zoning district throughout the County violates the uniformity requirement of Government Code section 65852 and is invalid.

After hosting their daughter’s wedding at their 37-acre vineyard home in a semi-rural part of Tuolumne County, Ronald and Lynda Peterson decided to start a business on the property as a wedding and special event venue. The fly in the ointment was that their property is zoned AE-37 (Exclusive Agricultural, 37-acre minimum). The purpose of the AE-37 district, as set forth in the zoning ordinance, “is to provide for agricultural and resource production where commercial agricultural uses can exist without encroachment of incompatible uses.” (Tuolumne County Ord. Code, § 17.08.010.) Commercial use for weddings and similar events is not allowed by the zoning ordinance, with or without a conditional use permit. (Tuolumne County Ord. Code, §§ 17.08.020, 17.08.030.) The Petersons’ initial solution was to propose a zoning text amendment allowing wedding and special events as a conditional use in the AE-37 zone, and they submitted a conditional use permit application in anticipation of the adoption of the text amendment.

Unfortunately for the Petersons, their agriculturally-zoned property was already encroached upon by two to five acre residential parcels on three sides. These neighbors were not happy with the noise and congested parking that accompanied the Petersons’ daughter’s wedding and vociferously complained. Although none of the agriculturally-zoned property owners in the area objected to the text amendment, the residential area neighbors submitted letters and a petition opposing the proposed zoning amendment. The staff then recommended denial of the use permit. The Petersons withdrew their conditional use permit application leaving the zoning amendment still pending. About nine months later the Petersons submitted a revised conditional use permit application, again in anticipation that the text amendment would be approved.

The Petersons encountered yet another obstacle of no little importance. The Board of Supervisors voted against adoption of the text amendment that would permit weddings, lawn parties and other special events as a conditional use in the AE-37 zone. Undaunted, the staff suggested that the Board could approve a parcel-specific special exception to the zoning ordinance through the adoption of a development agreement, as authorized by the development agreement statute. (Gov. Code, § 65864 et seq.) Another nine months later, the Board approved a development agreement and a conditional use permit for the Petersons’ wedding venue business.

The neighbors sued, arguing that the development agreement and permit violated the zoning ordinance and that the County had not adequately complied with CEQA by the adoption of a mitigated negative declaration. Fifteen months later, the trial court ruled in their favor on the first issue, holding that the development agreement and conditional use permit were ultra vires and void ab initio. The trial court dismissed the CEQA cause of action because it was no longer ripe for review. The County appealed.

The court of appeals reviewed the legal underpinnings of zoning. Rather than statute, the legal basis for local government adoption of zoning regulations originates in Article XI, § 7 of the California Constitution, establishing the police power of counties and cities. The court noted that the planning and zoning law is expressly meant to be minimally restrictive of this power. (Gov. Code, § 65850.) As summarized by the court, property owners have three basic avenues of relief from restrictive zoning: 1) rezone the property to apply a different classification in which the use is permitted (map amendment) or amend the regulations applicable to the existing zone (text amendment); 2) apply for a conditional use permit, if the local ordinance allows (Gov. Code, § 65901.); or, 3) apply for a variance because special circumstances such as the size, shape, topography, location or surroundings affecting the parcel, “the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.” (Gov. Code, § 65906.)

In deciding whether the California zoning statute’s minimal restriction of local police power prohibits the County’s use of its authority to enter into development agreements to create exceptions to zoning regulation, the court noted that a three-step logical sequence is inherent in the statutory scheme: adoption of regulations (Gov. Code, § 65850), creation of zones (Gov. Code, § 65851), and the requirements, among other standards, that the zones be uniform within each zone, but may vary from zone to zone (Gov. Code, § 65852). Zoning rests upon a “critical reciprocity” that is “like a contract” in which each land owner gives up some rights in exchange for the assurance that his or her neighbors will be similarly restricted in order to enhance the overall community welfare. The court analogized that the uniformity requirement is like the enforcement clause in a contract that is “’intended to prevent unreasonable discrimination against, or benefit to particular properties within a given zone.’” By approving an ad hoc exception for a particular property from the standards generally applicable to a given zone, the County broke that contract. The court held,

. . . 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. This is because a rezoning places a parcel within a general category of parcels (those in the new zone), all of which are subject to the same zoning regulations. The county’s action in this case, by contrast, placed the Petersons’ land in a class by itself.

The court held that development agreements allow private landowners to voluntarily apply more restrictive regulation than that generally allowed within the designated zone. It rejected the County’s contention that through adoption of a development agreement it could grant a developer the right to avoid use limitations set forth in existing zoning regulations even while leaving those regulations unchanged for all other property owners and refraining from rezoning the property (emphasis in original). The court concluded that the way that the County could lawfully accomplish what it attempted to achieve was through a zoning amendment, which may be accompanied by a development agreement and/or a conditional use permit.

Joel Ellinwood, AICP is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP 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.