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Law Offices of Stuart M. Flashman

Land Use Law

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Land Use Law in California
California land use law is based on a heirarchy, or perhaps one might say a pyramid, of regulations.  In some respects, the pyramid reflects the standard regimen of legal control.  At the top of the pyramid are the federal and California constitutions.  These define the overall parameters within which land use law must operate.  Thus, the U.S. Constitution Fifth Amendment's "takings" clause limits land use controls in that a control that is too draconian will constitute a taking of the property by inverse condemnation -- prohibiting the landowner from making any productive use if his/her property.
 
Below the constitutions is California statutory law.  In some cases, the California Constitution and California's land use statutes allow local control of land use, especially in charter cities.  In other cases, however, the legislature has stepped in to pre-empt local land use controls.  This is the case, for example, with state-mandated affordable housing density bonuses.
 
Under the California Constitution, charter cities are allowed to set their own course in their governance except when the legislature decides that statwide uniformity is important.  Thus, for example, under state law, a city's (or county's) zoning must be consistent with its general plan.  However, the state law allows charter cities the prerogative to ignore this requirement.  Some cities, such as Berkeley, have done just that.  In such cities, the general plan is nothing more than a set of advisory guidelines.  In most cities, however, the general plan is considered the local "constitution" for land use controls, and all other local land use enactments must be consistent with the general plan.
 
Beneath the general plan are zoning and specific plans.  These define more precisely exactly what is permitted in different parts of the city/county, and under what conditions.  Zoning is usually considered the more general of the two, and cities/counties are required to have a comprehensive city/countywide zoning ordinance.  Specific plans, as their name implies, are usually more specific.  A specific plan applies to a particular portion of the city/county, and designates what kinds of uses and supporting infrastructure are to be placed where.  A specific plan is also required to explain how the various improvements set forth in it are proposed to be financed.  More often than not, a specific plan gets enacted as a prelude to a large-scale development project; often under the aegis of a single master developer.
 
Finally, below these legislative enactments are the administrative approvals that range from individual use permits to subdivision maps to large-scale development plans and planned unit developments.  It's important to distinguish these administrative approvals from legislative approvals because, unlike legislative approvals, administrative approvals are not subject to referendum and cannot be enacted by initiative.
 
Somewhere between general legislative land use enactments and specific administrative approvals lie development agreements.  A development agreement does not, in itself, approve a development project.  Rather, it locks in the regulatory framework within which the development approval happens.  In essence, it is a contract between the developer and the city/county.  Because it is a regulatory enactment, it is considered a legislative act and is subject to referendum.  An interesting question is whether a development agreement can be enacted by initiative.  If so, it would be able to bypass the CEQA process, which does not apply to measures placed on the ballot by initiative petition.
 
An additional "side layer" to this pyramid is redevelopment planning.  Peculiarly, redevelopment agencies, even when local, are part of state, rather than local, government.  They are controlled by the Health and Safety Code, rather than the government code.  Nevertheless, the legislative acts of a redvelopment agency -- notably redevelopment plans -- are subject to local referendum.

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Law Offices of
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
(510) 652-5373 (voice & fax)
 
 
 
last updated:  November 17, 2008