Posted by: Patricia Salkin | January 24, 2008

Zoning Requires Uniformity and CA Appeals Court Says Developer Agreement is Not a Substitute for Rezoning

Thirteen states, including California, provide statutory authorization for municipalities and developers and to enter into develoment agreements. The development agreement is, in essence, a bilateral contract between the municipality and the developer whereby the municipality agrees to guarantee to the developer the right to develop the project for a defined number of years regardless of future changes to the zoning law or subdivision regulations in exchange for certain negotiated public amenities (or a fee in lieu thereof) that the municipallity might not otherwise legally be able to require the developer to contribute.  The case discussed below from California is an example of a limitation on just how far municipalities can go when negotiating away zoning regulations through these development agreements.

Development Agreements cannot be employed to allow a use that is not permitted by the zoning ordinance.  In finding that this violates the uniformity requirement in State statute, the court said that rezoning, conditional use permit or a variance is required when an applicant desires a use not otherwise allowed as of right.   

The owners of property in an exclusive agricultural zone desired to open a wedding business by hosting weddings and other similar events on their 37-acre parcel. Such use was not allowed by the zoning ordinance. The property owners applied to the county for permission to use the property for this commercial venture, and the county staff and county planning commission recommended denial of the application.  At the same time, the county board of supervisors had before it a proposed zoning amendment that would have allowed for this use subject to a request for a conditional use permit, but that amendment never passed.  The property owners submitted a revised request, addressing some of the staff concerns, and the staff recommended to the Board that although the use was not allowed, the Board could enter into a development agreement with a use permit.  The Board then passed an ordinance authorizing the development agreement, and the present litigation followed.  

The Court began their analysis with a review of the constitutional powers granted to local governments for zoning, and then explains that relief from a zoning regulations typically takes one of three actions: a change in zoning (or a rezoning); a conditional use permit (only where use is not allowed as of right, but rather must satisfy certain criteria in the zoning law); and a variance (request, analyzed against certain tests or criteria, to allow a use not otherwise allowed).   

The current action did not fall into any of these three categories, and the Court turned to the question of whether the county’s approval violated the “minimum of imitation” that state law places on local authorities’ control over zoning, which is the uniformity requirement. In explaining how this violates the uniformity requirement (a requirement that the rules should be the same for each parcel in a particular zoning district), the Court noted that such an approval breaks the “contract” that the county has with all of the others in the district (“If a zoning scheme is like a contract, the uniformity requirement is like an enforcement clause, allowing parties to the contract to challenge burdens unfairly imposed on them or benefits unfairly conferred on others.”)   By not following one of the three legally authorized paths to change the allowable use, the Court said the county allowed this “contract” to be broken. 

The Court noted, that “The foundations of zoning would be undermined…if local governments could grant favored treatment to some owners on a purely ad hoc basis.” Unlike a rezoning, which would have placed the parcel with a general category of parcels, all of which would be subject to the same zoning regulations, here the county allowed the parcel to be placed in a class by itself.  

Turning to the question of whether the state development agreement statute authorizes such action, the Court lexplained that the main “purpose of a development agreement is to freeze existing regulations in order to give the developer assurance that the project will not be blocked by future regulatory changes.”  The Court said that the statute does not give the developer the right to avoid use limitations set forth in existing zoning regulations, finding that “The development agreement law does not authorize cities and counties to create forms of zoning disuniformity they otherwise lack authority to create.”  

Neighbors in Support of Appropriate Land Use v. County of Tuolomne, 2007 WL 427998 (Ca. App. 5 Dist. 12/7/2007). 

The opinion can also be accessed at: http://www.courtinfo.ca.gov/opinions/documents/F051690.PDF  

Here is what other blogs have to say about the opinion:

Abbott & Kinderman Land Use Law Blog: http://blog.aklandlaw.com/archives/planning-zoning-development-if-the-zoning-isnt-uniform-the-court-wont-salute.html 

Inverse Condemnation: http://www.inversecondemnation.com/inversecondemnation/2007/12/development-agr.html  

Real Estate and Construction Law Blog:  http://www.realestateandconstructionlawblog.com/recent-cases-ad-hoc-zoning-exceptions-impermissible-even-in-development-agreements-neighbors-in-support-of-appropriate-land-use-et-al-v-county-of-tuolumne-et-al-dec-7-2007-f051690-__-cal-app-4th.html


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