By William W. Abbott

Ideal Boat & Camper Storage began operating as an equipment storage yard in 1964, and in subsequent years, obtained various county approvals, including two site development review (“SDR”) approvals, the latest in 1990. In 1993, the County adopted a new area planning document which sought to promote viticulture in the area. In 1994, the area plan was incorporated in the comprehensive general plan for the east area of the county. In November 2000, the voters of Alameda County approved Measure D, which among other purposes, sought to protect agricultural and open space. Measure D restricted the urban expansion areas, and added new development requirements.

In 2001, Ideal submitted an application to expand the storage operation to include an additional 30 areas of the same lot as the existing activity into additional vehicle storage. On the basis that the proposal could lead to the conversion of potentially productive agricultural land, staff recommended denial. The planning commission then the Board of Supervisors denied the request. The applicant then re-filed a new application. Staff advised the applicant that the County could not approve expansion of a non-conforming use, but would consider all arguments offered by the applicant. Staff recommended to the planning commission that it dispense with CEQA requirements and deny the application on the basis that it was an expansion of a non-conforming use. The commission denied the request as did the Board on the basis that it was an expansion of a non-conforming use in conflict with Measure D, and was inconsistent with County planning requirements. The applicant then filed a writ. The trial court denied all relief.

On appeal, the court rejected all of Ideal’s arguments. First, the court reviewed the specifics of the east area plan, as amended by Measure D. These two land use requirements together aggressively restricted new development. When read in conjunction with other county land use regulations, the existing Ideal storage activity became a non-conforming use upon passage of the east area plan and Measure D. Measure D restricted any expansion of non-conforming uses. Under such pointed limitations, expansion would not be consistent with the applicable planning and land use requirements. With that as background, the appellate court rejected the argument that Measure D was not intended to apply to existing activities such as Ideal. As Measure D restricted discretionary approvals, Ideal then challenged the nature of the SDR approval, asserting it was not discretionary. Although no hearing was required by local ordinance, the director could conduct a hearing on the proposed SDR. More importantly, the terms of the ordinance contemplated that the decision making authority would exercise significant discretion, based upon a broad range of issues and potential areas of investigation. The court of appeal also rejected the argument that Ideal had a vested right to expand. Given that the approvals granted by the County prior to the east area plan and Measure D did not contemplate any additional expansion, the appellate court could find no basis for an argument that there was a vested right to expand.Ideal Boat & Camper Storage v. County of Alameda (August 9, 2012, A132714) ___Cal.App.4th ___.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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.