Staff Report with Exhibit.Land Use 101
PREPARED BY: Joel Paulson
Community Development Director
Reviewed by: Community Development Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6872
www.losgatosca.gov
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 04/14/2021
ITEM NO: 5
DATE: April 9, 2021
TO: Planning Commission
FROM: Joel Paulson, Community Development Director
SUBJECT: Review and Discuss the Land Use 101 Paper Provided by the Town Attorney.
REMARKS:
The Town Attorney has prepared a paper titled Land Use 101 (Exhibit 1). This paper provides a
general overview of the fundamental principles and legal concepts of Land Use and Planning
Law. Its purpose is to explain, in general terms, how the Town of Los Gatos regulates land use
and to define some commonly used planning terms. We hope you find the paper helpful and
that it serves as an easy to use resource for Planning Commissioners and the public. The Town
Attorney and staff look forward to the discussion with the Planning Commission regarding the
topics covered in this paper.
EXHIBIT:
1. Land Use 101 Paper from the Town Attorney
This Page
Intentionally
Left Blank
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TOWN OF LOS GATOS
OFFICE OF THE TOWN ATTORNEY
PHONE (408) 354-6818
Land Use 101
INTRODUCTION
This paper provides a general overview of the fundamental principles and legal concepts of Land
Use and Planning Law. Its purpose is to explain, in general terms, how the Town of Los Gatos
regulates land use and to define some commonly used planning terms. We hope you find the
paper helpful and that it serves as an easy to use resource for Planning Commissioners.
STATE LAW, LOCAL PLANNING, AND POLICE POWER
State law is the foundation for local planning in California. The California Government Code
(Sections 65000 et seq.) contains many of the laws pertaining to the regulation of land uses by
local governments including: the general plan requirement, specific plans, subdivisions, and
zoning.
Virtually every reference guide on Land Use begins with the premise that a city has the police
power to protect the public health, safety, and welfare of its residents. See Berman v. Parker,
(1954) 348 U.S. 26, 32-33, DeVita v. County of Napa, (1995) 9 Cal. 4th 763, 782; see also Big
Creek Lumber Co. v. City of Santa Cruz, (2006) 38 Cal. 4th 1139, 1159. This right is set forth in
the California Constitution, which states “A county or city may make and enforce within its
limits all local, police, sanitary, and other ordinances and regulations not in conflict with general
laws.” Cal. Const. at. XI, section 7. The ability to enact ordinances to protect the health, safety,
and welfare is important in the land use context because it confers very broad rights to adopt
regulations that implement local land use vision and values, so long as laws enacted by a city are
not in conflict with state general laws. In Village of Belle Terre v. Boraas, (1974) 416 U.S. 1, the
U.S. Supreme Court addressed the scope of such power and stated: “The police power is not
confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where
family values, youth values, and the blessings of quiet seclusion and clean air make the area a
sanctuary for people.” Id at 9.
One seminal land use and zoning case underscoring a city’s police power was Wal-Mart Stores
Inc. v. The City of Turlock, (2006) 138 Cal. App. 4th 273, 303 where, in response to concerns
over the impacts of big box stores, particularly Wal-Mart, the City of Turlock adopted an
ordinance prohibiting the development of discount superstores. Wal-Mart challenged the
ordinance, stating the city had exceeded its police power, but the Court disagreed. The court
found the police power allows cities to “control and organize development within their
boundaries as a means of serving the general welfare.” Id at 303. The important issue to
understand in that case was the language of the ordinance itself. The ordinance did not, and
CIVIC CENTER
110 E. MAIN STREET
LOS GATOS, CA 95031
EXHIBIT 1
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legally could not, target specific tenants which were perceived as causing the certain impact s.
However, the city could control the use and development standards of property within its
community which, in effect, prohibited only a handful of big box retailers, including Wal-Mart.
Another case that highlights the city’s police power, especially at the micro-level, is Disney v.
City of Concord, (2011) 194 Cal.App.4th 1410. In that case, the City of Concord adopted an
ordinance restricting the storage and parking of recreational vehicles in residential yards and
driveways. Among other things, the City of Concord’s ordinance limited the number of RVs on
any residential property to two, required RVs to be stored in side and rear yards behind a six foot
high opaque fence, prohibited RVs from being stored on front yards and driveways (with some
exceptions), and established maintenance standards for RVs within the public view. James
Disney filed suit. His main argument was that the ordinance exceeded Concord’s police power.
The Court determined that the City of Concord’s Ordinance was a valid exercise of the city’s
police power, where the ordinance had an aesthetic purpose. Citing Metromedia, Inc. v. City of
San Diego (1980) 26 Cal.3d 848, 858, the Court stated “It is within the power of the Legislature
to determine that the community should be beautiful as well as healthy, spacious as well as clean,
well balanced as well as carefully patrolled.” Again, as echoed by Village of Belle, supra, a
city’s police power is not limited to regulating just stench and filth.
Preemption
Although a city’s police power is broad, it is not absolute, and cannot conflict with the State’s
general laws. A conflict exists between a local ordinance and state law if the ordinance
“Contradicts or enters an area fully occupied by general law, either expressly or by legislative
implication.” Viacom Outdoor Inc. v. City of Arcata, (2006)140 Cal. App. 4th 230, 236.
THE GENERAL PLAN, SPECIFIC PLANS, AND ZONING REGULATIONS
There are currently 533 incorporated cities and counties in California. State law requires each of
these jurisdictions to prepare and adopt “…a comprehensive, long term general plan for the
physical development of the…city, and of any land outside its boundaries…” Gov. Code section
65300. Under Gov. Code Section 65302, each General Plan must include the following elements:
1. Land Use Element;
2. Circulation Element;
3. Housing Element;
4. Conservation Element;
5. Open Space Element;
6. Noise Element;
7. Safety Element;
8. Air Quality Element; and
9. Environmental Justice Element.
Gov. Code Section 65302 also sets forth particular requirements that must be included in each of
the nine elements. One of the more scrutinized elements of a General Plan is the Housing
Element which, among other things, must show that the agency’s land use and zoning
designations contribute to the attainment of State housing goals regarding affordable,
transitional, and supportive housing.
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Government Code section 65583(c) requires the Housing Element to establish a program setting
forth a schedule of actions to implement the Housing Element’s policies. Over the course of the
last ten years or so, we have seen a shift towards more specific program/schedule language
required by Housing and Community Development (“HCD”) for each Housing Element update.
Adoption and amendment of a General Plan is a “project” under CEQA and therefore,
environmental review must be performed. City of Santa Ana v City of Garden Grove (1979) 100
CA3d 521. Adopting or amending the General Plan must be done in accordance with
Government Code section 35350 et seq. A general law city may not amend any of the seven
mandatory elements of its General Plan more than four times per year. Gov. Code section
65358(b).
Because of the comprehensive nature of General Plan documents, they often take months, if not
years, to adopt or significantly update and the legal issues surrounding the adequacy of a General
Plan are certainly the subject of treatises beyond the scope of this paper. However, the “take
away” is that the General Plan needs to be visionary, but also must give enough guidance and
particularity to provide clear context for the subsequent planning decisions and approvals that
will flow from and must be consistent with the General Plan (i.e., specific plans, zoning
regulations, and map, project, and permit approvals).
Specific Plans
Specific Plans are hybrid documents that act as a bridge between the General Plan and Zoning
Regulations for future development of a particular area. Government Code section 65450 states
that a city may prepare a Specific Plan “for the systematic implementation of the general plan…”
A Specific Plan is adopted in the same manner as a General Plan (Gov. Code section 65453) and
is considered a legislative act.
There are no black and white rules governing when a Specific Plan is required. Instead, a
Specific Plan is a tool that public agencies and developers use to achieve better specificity on the
vision and development potential of a particular tract of land without having to go through
extensive site-specific land use analysis and entitlement proceedings. It is “programmatic” in
nature and usually deals with major infrastructure, development and conservation standards and
includes an implementation program. See Gov. Code section 65451. Often, a specific plan will
establish the “look” and “feel” of what future development on the property will be and it can
provide a more clear and refined definition of the parameters in which development will be
allowed and the responsibilities for major infrastructure area developers will be expected to
fulfill. Specific plans can be very useful to agencies in setting realistic development expectations
and signaling important big picture limitations or constraints unique to a particular area; they can
be very useful to developers in helping to size the potential and costs of development.
Development Agreements
Development Agreements are a unique planning tool authorized by statute pursuant to
Government Code section 65864 – 65869.5. A Development Agreement is an agreement
between the City and a property owner in which the parties agree to “freeze” all rules,
regulations, and policies that are in place as of the execution of the agreement. Gov. Code
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section 65866; Santa Margarita Area Residents Together v San Luis Obispo County Bd. of
Supervisors (2000) 84 CA4th 221. The Development Agreement structure, because it is a
voluntary, arm’s length negotiation process between a developer and city, may also allow a city
to negotiate developer concessions or contributions that it could not otherwise obtain from a
developer through normal exactions or conditions of approval. In some circumstances,
Development Agreements can provide both greater flexibility and greater certainty in the
development of large or complex projects. However, it should be noted that Development
Agreements are legislative acts and subject to referendum, so the flexibility afforded by the tool
is also limited by community values.
Zoning
The general plan is a long-range policy document that looks at the future of the community. A
zoning ordinance is the local law that spells out the immediate, allowable uses for each piece of
property within the community.
The purpose of zoning is to implement the policies of the general plan. Under the concept of
zoning, various kinds of land uses are grouped into general categories or "zones" such as single-
family residential, multi-family residential, neighborhood commercial, light industrial,
agricultural, etc. A typical zoning ordinance describes 20 or more different zones which may be
applied to land within the community. Each piece of property in the community is assigned a
zone listing the kinds of uses that will be allowed on that land and setting standards such as
minimum lot size, maximum building height, and minimum setbacks. The distribution of
residential, commercial, industrial, and other zones will be based on the pattern of land uses
established in the community's general plan. Maps are used to keep track of the zoning for each
piece of land.
Variances
A variance is a limited waiver of development standards for a use that is otherwise permitted in
that zone. The city or county may grant a variance in special cases where: (1) application of the
zoning regulations would deprive property of the uses enjoyed by nearby, similarly zoned lands;
and (2) restrictions have been imposed to ensure that the variance will not be a grant of special
privilege. A city or county may not grant a variance that would permit a use that is not otherwise
allowed in that zone (for example, a commercial use could not be approved in a residential zone
by variance). Typically, variances are considered when the physical characteristics of the
property make it difficult to develop. For instance, in a situation where the rear half of a lot is a
steep slope, a variance might be approved to allow a house to be built closer to the street than
usually allowed. Variance requests require a public hearing and neighbors are given the
opportunity to testify. The local hearing body then decides whether to approve or deny the
variance.
Conditional Use Permits
Most zoning ordinances identify certain land uses which do not precisely fit into existing zones,
but which may be allowed upon approval of a conditional use permit (sometimes called a special
use permit or a CUP). These might include community facilities (such as hospitals or schools),
public buildings or grounds (such as fire stations or parks), temporary or hard-to-classify uses
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(such as Christmas tree sales or small engine repair), or land uses with potentially significant
environmental impacts. The local zoning ordinance specifies those uses for which a conditional
use permit may be requested, which zones they may be requested in, and the public hearing
procedure.
As with variances, a public hearing must be held to consider a CUP. If the local planning
commission or zoning board approves the use, it will usually do so subject to certain conditions
being met by the permit applicant. Alternatively, it may deny uses which do not meet local
standards.
Subdivisions
In general, land cannot be divided in California without local government approval. Dividing
land for sale, lease, or financing is regulated by local ordinances based on the State Subdivision
Map Act (commencing with Government Code Section 66410). The local general plan, zoning,
subdivision, and other ordinances govern the design of the subdivision, the size of its l ots, and
the types of improvements (street construction, sewer lines, drainage facilities, etc.). In addition,
the city or county may impose a variety of fees upon the subdivision, depending upon local and
regional needs, such as school impact fees, park fees, etc. Developers can contact their local
planning department for information on local requirements and procedures.
There are basically two types of subdivisions: parcel maps, which are limited to divisions
resulting in fewer than five lots (with certain exceptions); and subdivision maps (also called tract
maps), which apply to divisions resulting in five or more lots. Applications for both types of land
divisions must be submitted to the local government for consideration in accordance with the
local subdivision ordinance and the Subdivision Map Act.
HEARINGS AND DUE PROCESS
The Due Process clause of the Fourteenth Amendment is inextricably intertwined with land use
law. Due process requires reasonable notice and an opportunity to be heard by an impartial
decision maker for administrative proceedings that affect liberty or property interests. See Gov.
Code section 65905(a); Fuchs v County of Los Angeles Civil Serv. Comm'n (1973) 34 CA3d
709. Due process issues can be fairly apparent, for example i n the case of an issuance or
revocation of a conditional use permit.
State law requires that local governments hold public hearings prior to most planning actions. At
the hearing, the council, board, or advisory commission will explain the proposal, consider it in
light of local regulations and environmental effects, and listen to testimony from interested
parties. The council, board, or commission will vote on the proposal at the conclusion of the
hearing.
One of the most important perspectives on Land Use and Planning Law is to understand the basis
and procedures by which a city’s decisions are challenged. By understanding “which hat” your
wearing (legislative or adjudicative/quasi-judicial), you will better navigate the contours of
legally defensible decisions and how to develop the administrative record to support your
decision. One way to explain the difference between a quasi-legislative decision and a quasi-
judicial decision is by taking legislative action, you are being asked to formulate general policies
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or rules that will apply to future projects, applications, or factual circumstances of a given type.
In contrast, a quasi- judicial/adjudicative decision is one in which a specific project, application,
or set of facts is being evaluated for compliance with the policy or rule that you have already
developed (the development of law (legislative) versus the application of law to facts
(adjudicative).
Administrative Writ of Mandate – the Quasi-judicial Hat.
An adjudicative or quasi-judicial administrative decision may be challenged by Administrative
Mandamus when: a hearing in the underlying administrative proceeding is required by law in
which evidence is taken and the decision maker is vested with the discretion to determine
contested factual issues. Code of Civ. Proc. 1094.5. Review of these decisions is usually limited
to the administrative record. Code of Civ. Proc. section 1094.5(a). The scope of review in
Administrative Mandamus proceedings is limited to: whether the agency has proceeded without,
or in excess of, jurisdiction; whether there was a fair hearing; or whether there was any
prejudicial abuse of discretion. Code of Civ. Proc. section 1094.5(b). “Abuse of discretion” is
established when: the agency has not proceeded in the manner required by law; the order or
decision is not supported by the findings; or the findings are not supported by the evidence. See
Leal v. Gourley, (2002) 100 CA 4th 963, 968.
The standard of review for Administrative Mandamus is usually the substantial evidence test,
however, when the underlying decision substantially affects a fundamental vested right, the
independent judgment test applies. Code of Civ. Proc. section CCP §1094.5(b)-(c); Goat Hill
Tavern v City of Costa Mesa (1992) 6 CA4th 1519, 1525. Under the su bstantial evidence test, a
court determines if there is substantial evidence to support the findings and if the findings
support the decision. Under this test, the court accords significant deference to the administrative
fact-finder. Bedoe v. County of San Diego (2013) 215 CA 4th 56, 61. Courts have consistently
refused to substitute judicial judgment for the legislative judgment of the governing body of a
local agency. So long as the legislative decision bears a reasonable relationship to the public
welfare, it is upheld. See Ass’n. Home Builders, Inc. v. City of Livermore, (1976) 18 Cal. 3d
582, 604. California Hotel & Motel Ass’n v. Indust Welfare Comm’n, (1979) 25 Cal. 3d 200,
211-212 [judicial review is limited “out of deference to the separate of powers between the
Legislature and the judiciary [and] and to the legislative delegation of administrative authority to
the agency.”] Of course, there is a caveat if some sort of heightened scrutiny is involved.
Pursuant to the landmark case of Topanga Assn. For A Scenic Community v. County of Los
Angeles (1974), the Planning Commission must explain land use decisions through the adoption
of findings. Topanga defined findings as legally relevant sub-conclusions which expose the
agency's mode of analysis of facts, regulations, and policies, and bridge the analytical gap
between raw data and ultimate decision. Therefore, the findings of the Planning Commission
must be relevant to adopted, applicable criteria in statutes, ordinances or policies. In a way, The
Planning Commission operates as a court in that the Planning Commission must apply the
Town’s local land use regulations to a specific application just as a court applies the law to a
specific set of facts. Basically, the findings of the Planning Commission are an explanation of
how they progressed from the facts through established fixed rule, standard, law, or policies to
the decision.
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Based upon the forgoing, and as I have explained in meetings, findings such as the proposed
modification is a “cost saving/profit increasing strategy” or that “they stand to make millions of
dollars” or that the developers must “stick with their commitment” or “uphold the agreement” or
that this is a “bait and switch” or “will force visitors, shoppers & residents to find parking
elsewhere” or that the developers “are bullies and are ruining our town” are inadequate and
improper findings pursuant to Topanga Assn. For A Scenic Community v. County of Los
Angeles (1974). Although all of these statements may not lack evidentiary support, they lack
legal relevance and even if they are assumed to be correct, those findings simply do not meet the
legal requirements set forth in code and case law.
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
CEQA (commencing with Public Resources Code Section 21000) requires local and state
governments to consider the potential environmental effects of a project before deciding whether
to approve it. CEQA's purpose is to disclose the potential impacts of a project, suggest methods
to minimize those impacts, and discuss alternatives to the project so that decision makers will
have full information upon which to base their decision. The term "project" is defined broadly in
CEQA. It includes all of the actions discussed in this paper -- from annexations to zoning.
CEQA is a complex law with a great deal of subtlety and local variation. The following
discussion is extremely general. The basic requirements and administrative framework for local
governments' CEQA responsibilities are described in the California Environmental Quality Act:
Statutes and Guidelines.
Lead Agency
The "lead agency" is responsible for seeing that environmental review is done in accordance with
CEQA and that environmental analyses are prepared when necessary. The agency with the
principal responsibility for issuing permits to a project (or for carrying out the project) is deemed
to be the "lead agency." As lead agency, it may prepare the environmental analysis itself or it
may contract for the work to be done under its direction. In practically all local planning matters
(such as rezoning, conditional use permits, and specific plans) the planning department is the
lead agency.
Preliminary Review
Analyzing a project's potential environmental effect is a multistep process. Many minor projects
are exempt from the CEQA requirements. Typically, these include single-family homes,
remodeling, accessory structures, and minor lot divisions (for a complete list refer to California
Environmental Quality Act: Statutes and Guidelines). No environmental review is required when
a project is exempt from CEQA.
When a project is subject to review under CEQA, the lead agency prepares an "initial study" to
assess the potential adverse physical impacts of the proposal.
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Negative Declarations, Mitigated Negative Declarations, and EIRs
If the initial study shows that the project will not cause a "significant" impact on the environment
or when it has been revised to eliminate all such impacts, a "negative declaration" is prepared.
The negative declaration describes why the project will not have a significant impact and may
require that the project incorporate a number of measures (called "mitigation measures")
ensuring that there will be no such impact. If the Initial Study indicates that there could be
significant impacts, but those impacts can be mitigated to a less than significant level, then a
Mitigated Negative Declaration (MND) can be prepared. Most projects, especially those
involving any sort of construction activity, will include conditions or mitigation measures within
the negative declaration calculated to reduce any potential environmental impacts to be less than
significant. However, conditions or mitigation measures in the MND will not preclude the need
to prepare an EIR if information meeting the fair argument standard is introduced into the record.
See Pub. Res. Code section 21064.5; CEQA Guidelines section 15070(b)(2).
If significant environmental effects are identified, then an Environmental Impact Report (EIR)
must be written before the project can be considered by decision makers. An EIR discusses the
proposed project, its environmental setting, its probable impacts, realistic means of reducing or
eliminating those impacts, its cumulative effects, and alternatives to the project. CEQA requires
that draft Negative Declarations and EIRs be made available for review by the public and other
agencies prior to consideration of the project. The review period allows concerned citizens and
agencies to comment on the completeness and adequacy of the environmental review prior to its
completion.
If an ND or MND is prepared, the city must provide the public and specified agencies with a
notice of intention. Pub. Res. Code section 21092; CEQA Guidelines section 15072. The public
review period must be no less than 20 days. Pub. Res. Code section 21092. If the State
Clearinghouse is used, the review period is at least 30 days. Pub. Res. Code section 21091(b).
When the decision making body approves a project, it must certify the adequacy of the
environmental review. If its decision to approve a project will result in unavoidable significant
impacts, the decision making body must not only certify the EIR, but also state, in writing, its
overriding reasons for granting the approval and how the impacts are to be addressed.
CONCLUSION
The world of land use law and regulation is comprehensive and the sheer volume of legal
concepts, statutes governing land use decisions, and procedural requirements can be daunting.
However, land use regulation is at the heart of some of the most significant decisions local
governments make and represents the single most powerful tool that communities have to define,
establish, and maintain their “sense of place.” If each land use decision can be evaluated starting
with the constitutional foundations of the authority to regulate and the various statutes and
processes can be viewed as tools to help answer the important questions and order important land
use decisions, the process starts to seem less overwhelming. Fundamentally, this paper is
presented from the perspective that the law is supposed to make sense and that the objective of
the law is good planning. It is our hope that the paper can be used as one of many tools to
navigate the legal complexities through that lens.