Advanced Zoning and Land Use in California March 23, 2006 Land Use/Planning and Zoning Law; Subdivision Map Act; Vested Rights; Due Diligence and the Development Process Presented by: John P. Erskine Nossaman Guthner Knox & Elliott LLP Phone (949) 833-7800 Fax (949) 833-7878 jerskine@nossaman.com
Introduction Land Use/Planning and Zoning Law - General Plan, Specific Plan, Zoning and Permit Issues Subdivision Map Act - Subdivision Map Process and Exactions Vested Rights (and Benefits) for Both Local Government and Land Owners Due Diligence and the Development Process 2
Overview of Planning and Zoning Law Local Regional and State government regulation of land development is accomplished through three parallel and interconnected types of control 1) Planning Controls (e.g. General and Specific Plans) - Planning and Zoning Law Community planning goals and development polices are determined 2) Environmental Controls (CEQA) - Public Resource Code and CEQA Guidelines Environmental review of both planning decisions and development permits to assure long-term environmental protection 3
Overview of Planning and Zoning Law (continued) 3) Subdivision and Permit Controls (Tentative Tract/Parcel Maps, Final Maps, Site Plans, CUPs, etc.) These land use controls operate together as a comprehensive and integrated set of tools 4
Brief History of Planning, Zoning and Subdivision Process in California Prior to the late 1960 s, Land Development was Controlled Primarily by Zoning and the Subdivision Process in California 1907 - California s original Subdivision Map Act was enacted. Cal. Stats. 1907, C. 231 1926 - Zoning authorized by the U.S. Supreme Court in: Euclid v. Ambler Realty 272 U.S. 365 (1926) 1929 - Subdivision Map Act amended to allow local government to require dedicated paved streets, minimal lot sizes, setbacks, utility easements, street and sidewalk widths 1937 - Subdivision Map Act amended and expressed local regulatory power to control design and improvement 5
Brief History of Planning, Zoning and Subdivision Process in California (Continued) 1969 - Congress enacted the National Environmental Policy Act (NEPA) 1970 - Assemblyman Jack Knox authored, and the State Legislature enacted, the California Environmental Quality Act (CEQA) 1971 - State comprehensive Planning & Zoning Law (Gov. Code 65000-66990) requires community-wide General Plans prior to consideration of zoning and development. Doctrine of general plan consistency applicable to all zoning, subdivision maps and development permits. 6
Brief History of Planning, Zoning and Subdivision Process in California (Continued) 1972 - California Supreme Court decided Friends of Mammoth v. Board of Supervisors (1972) 8 C 3d 247 determining that CEQA applies to private land development projects. 1970-1990 - The number of appellate level cases involving land use regulations tripled the entire output of all decisions reported prior to 1970. 7
General Plan, Specific Plan and Zoning Police Power Basis for All Land Use Regulations Even though established by Common Law, is set forth in the California Constitution Confers on cities the power to make and enforce within [its] limits all local police, sanitary and other ordinances and regulations not in conflict with General Laws California Constitution Art XI 7 Cities have broad authority to protect the public health, safety and welfare of its residents. Berman v. Parker, 348 U.S. 246 (1954) 8
General Plan, Specific Plan and Zoning State Zoning Laws Pertaining to Adoption of Local Zoning Regulations are Not Grants of Authority but Minimum Standards A city s or county s power to control its own land use decisions derives from this inherent police power, not from the delegation of authority by the state Devita v. County of Napa, 9 Cal. 4th 763 (1995) 9
General Plan, Specific Plan and Zoning The Elasticity of a City s Police Power Can Cover a Wide Range of Municipal Interests Improved Aesthetics Metromedia, Inc. v. City of San Diego 26 Cal. 3d 848 (1980) Upholding in part city s total ban of offsite advertising. Public Art Fees Ehrlich v. City of Culver City 12 Cal 4th 854 (1996) Local Rent Control Regulations Birkenfeld v. City of Berkeley 17 Cal. 3d 129 (1976) Prohibition of Vacation Rentals for Less Than 30 Consecutive Days Ewing v. City of Carmel-by-the-Sea 234 Cal. App. 3d 1579 (1991) Court held that Carmel s ordinance prohibiting transient commercial use of residential property for remuneration for less than 30 consecutive days was a valid exercise of the City s land use authority under its police power. 10
Statutory Framework for Land Use, Zoning, Subdivision and Environmental Review Functions Establishment of local planning agencies and commissions. Government Code 65100 et. seq. General Plan and Specific Plans. Government Code 65300 et. seq. Zoning Regulations. Government Code 65800 et. seq. Development Agreements. Government Code 65864 et. seq. Permit Streamlining Act. Government Code 65920 et. seq. Subdivision Map Act. Government Code 66410 et. seq. California Environmental Quality Act. Public Resources Code 21000 et. seq.; California Code of Regs. Title 14 Section 15000-15387 (CEQA Guidelines) Ralph A. Brown Act ( Brown Act ). Government Code 54950 et. seq. (Also known as the Open Meeting Act) Political Reform Act of 1974 as amended 11
General Plan, Specific Plan and Zoning General Plan Constitution for Future Community Development General Plan Adequacy: Mandatory and Optional Elements Adequacy (Government Code 65300). Requires General Plan to be comprehensive, long-term, internally consistent, complete. Mandatory Elements: 1) Land Use Element (Density standards and building intensity ) 2) Circulation Element (Existing and proposed transportation infrastructure) 3) Housing Element (Goals, policies and objectives for meeting identified housing needs) a) Cities have responsibility to meet RHNA numbers (see Committee for Responsible Planning v. City of Indian Wells 209 Cal. App. 3d 1005 (1989) b) Meet all economic segments of community (Government Code 65583) c) Density bonus law updated effective January 1, 2005 (see Government Code Section 65915) d) Must be updated every 5 years (Government Code 65588) 12
General Plan, Specific Plan and Zoning Mandatory Elements: (continued) 4) Conservation Element (Identification, conservation and use of natural resources) 5) Open Space Element (Preservation of open space) See Government Code 65560(b)(5) added in 2004 requiring preservation of Native American sites. 6) Noise Element (Identify and address noise sources in community) 7) Safety Element (Policies to address seismic, flood, tsunami, fire hazards) 13
General Plan, Specific Plan and Zoning General Plan Requirements/Consistency Analysis Determine that General Plan elements are current (checklist) General Plan may be amended only 4 times in calendar year (Government Code 65358(b)) Legislative approval adopted by resolution Specific Plan Vertical and horizontal consistency requirements (Napa Citizens v. Napa County Board of Supervisors) Additional restrictions? Zoning Standards and Overlays/Consistency Required Master or Area Plans Conditional Use Permits Required Variances, Conditional Exceptions and Special Permits 14
Discretionary Approvals For Residential Development Various Planning and Building Approvals Site Plan Review Architectural Review Committee PUDs Code Requirements 15
Subdivision Map Act Certificates of Compliance Lot Line Adjustments 16
Subdivision Map Act Subdivision Map Process Types of Subdivision Maps Tentative, Final Maps (5 or more parcels/lots) Parcel Map (4 or fewer parcels) Validity of Tentative or Final Map; Lifespan of Same (Initial 2 years can be extended up to an additional 12 months) Multiple Final Maps (36 month extensions see Government Code 66456.1) 17
Subdivision Map Act Tentative Subdivision Maps Extension Issues Mandatory extensions Off-site improvements for phased maps: up to 10 year maximum lifespan Development Agreement may extend map validity Discretionary extensions: up to 5 additional years Moratoria and litigation can toll lifespan Conditions of Approval (Government Code 66473 et. seq.; CEQA; General Plan) 18
Vested Rights Vested Rights Value of Vested Right Mechanisms Avco v. Coastal Commission, Late Vesting Rule Review of existing Development Agreements as buyer s counsel Statutory Development Agreement Required contents Development Plan specificity (Smart v. San Luis Obispo County Board of Supervisors) 19
Vested Rights Development Agreements (continued) Overall Validity (fee title vs. equitable ownership) Compliance with Agency s Procedures Resolution Review by both Legislative Body and Planning Commission Adoption by Ordinance Required Execution and Recordation Subject to Referendum (30 days following 2 nd reading) 20
Vested Rights Value of Development Agreement Time period protection New fees or regulations not applicable? Negotiated exactions No nexus/gov t Code 66000 protection California Late Vesting Rule: Perform substantial work (foundation and steel in the air) Incur substantial liabilities and Good faith reliance upon Validly Issued Permit 21
Vested Rights Vesting Tentative Maps Procedures Vesting Tentative Map Printed Conspicuously on Face of Tentative or Parcel Map (Government Code 66452(c)) Vesting When Application is Complete Protection against new Impact Fee Program Can freeze amount of fees at time application is complete Must be processed by local government No imposition of additional conditions Comparison of Development Agreement and Vesting Tentative Map Benefits for Applicants and Agencies Vesting tentative map vests rules not subsequent approvals 22
Vested Rights Development Agreements Does not bind other Governmental Agencies (e.g., school districts, state or federal agencies) Other Provisions Time period Product/Phasing Extraordinary exactions required? Fee protection? New fees? Freeze existing fees? 23
Statutes of Limitation CEQA 30 days with posted notice of determination 35 days with posted notice of exemption 180 days with no notice of determination posted Subdivision Map Act, General Plan Amendments, re-zones, development agreements, administrative approvals 90 days Williamson Act contracts 180 days Federal approvals 6 years Annexations 60 days 24
Due Diligence Due Diligence Overview Activities/investigations prior to securing purchase and sales agreement; during LOI period. Practical Applications Buyer and Seller s Counsel/Consultant s Role and Constraints During Due Diligence Period 25
Due Diligence Overview Review of Existing Uses On Property Conforming, Non-Conforming Uses Traffic, Noise, Air Quality, Water Quality Impacts of Existing Uses/Proposed Uses Multiple Jurisdictions/Agency Land Use Designation 26
Due Diligence Overview Review of Existing Uses On Property Current and Prior Planning Studies/Draft Staff Reports for Previously Approved Uses on Site Reports or Letters on File Regarding Site Prior Subdivision Applications. 27
Political Due Diligence Clients Interfacing with Elected Officials Analysis of decision-making body Term, pending elections Stability, relationship with staff Conflicts of interest issues Brown Act; ex parte communications pre and postapplications Legislative approvals Quasi-judicial/administrative approvals Political Reform Act; local campaign and gift ordinances 28
Other Land Use Considerations Interviewing Past/Proposed Members of Development Team (CEQA, Traffic and Community Relations Consultants) Preparation of Land Use Entitlement Applications Presentations/Administrative Record Moratoria (BILD v. Superior Court) Initiatives and Referenda Legislative vs. administrative approvals CC&Rs Current/pending development impact fees or fee increases 29
Contact John P. Erskine Nossaman Guthner Knox & Elliott LLP 18101 Von Karman Ave., Suite 1800 Irvine, CA 92612 Phone (949) 833-7800 Fax (949) 833-7878 jerskine@nossaman.com www.nossaman.com 30