Cities and counties frequently rely upon Government Code section 65858 to control land uses in the face of a regulatory or policy update. An interim ordinance can be adopted following minimum notice and hearing procedures. The initial ordinance is effective for up to 45 days but may be extended for an additional ten months and 15 days, and thereafter may be extended for up to another twelve months. By statute, an interim ordinance must be based upon findings of a current and immediate threat to the public health, safety, or welfare.
Huntington Park, a general law city 3.1 square miles in size, adopted a 65858 ordinance. The City’s action was motivated by the receipt of a number of inquiries the City concerning land use requirements for charter schools. At the time, twenty schools were located within the City, 6 were charter schools. Many of the students came from outside the City, generating concerns over traffic, parking, and noise. The ordinance prohibited the establishment of new charter schools. Although the existing city code required a conditional use permit for any new school, the code lacked any specific development standards.
A charter school association filed suit, arguing that there was no immediate threat justifying the ordinance. The trial court agreed with the City, but the court of appeal reversed. The appellate court looked to the ordinance, the provisions of which recited that the City has received several inquiries, but there was no evidence of any pending applications. On this basis, the appellate court concluded that there was no current and immediate threat to the public health, safety, or welfare and that the ordinance, on those findings, was improper.
William Abbott is an attorney at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.