Recently, the California Court of Appeal clarified a long-standing ambiguity about so-called “spot zoning” by municipal governments, determining that the practice of singling out a single property is proper so long as it is in the public interest. In a time when anti-growth activists are proposing ballot measures and threatening to derail good projects, this development could make responsible growth in San Francisco just a little easier.
“Spot” Re-zoning: The Court of Appeal Hands Project Sponsors (and the City) a Victory
Last week, the California Court of Appeal published an opinion weakening a common objection to large or unique projects: that rezoning necessary for the project constitutes impermissible “spot zoning.” In Foothill Communities Coalition v. County of Orange, (No. G048024, published 1/13/2014) the Court clarified that spot zoning is legal so long as it is in the “public interest.”
The facts of the case will sound familiar to project sponsors. A landowner—here the Orange County Archdiocese—owned a parcel of land in unincorporated Orange County that was zoned for single-family residential use. The Archdiocese wanted to construct a 153-unit senior living facility on the parcel, but under the Orange County’s zoning code, senior living facilities were not permitted in single-family residential zones. The County Board of Supervisors created a new zoning category for senior living facilities and re-zoned the Archdiocese’s property. Grassroots community groups and area homeowners challenged the Board’s actions as impermissible spot zoning.
As an initial issue, the Court explained that although spot zoning traditionally only referred to a City down-zoning a single parcel, the term now should apply equally to parcels singled out for either more permissive or more restrictive zoning.
The Court then concluded that although the Board’s actions did constitute “spot” zoning by allowing more permissive use on the property, it was permissible. Explaining that spot zoning is “merely shorthand for a certain arrangement of facts,” the Court determined that the real legal issue is if the Board of Supervisors correctly determined the change in zoning permitting the senior living facility was in Orange County’s public interest.
The Court concluded that it was, and that Orange County’s administrative findings adopted when approving the project sufficiently showed how the project was in the public interest. Specifically, the Court was satisfied by “factual findings of consistency” with Orange County’s applicable General Plan elements and an area plan for the neighborhood. As explained in the Board of Supervisors’ approval ordinance and the County’s planning staff recommendation, the senior living facility was consistent with a number of different policies in Orange County General Plan’s housing element, as well as land use design goals and policies of an area plan.
The opinion validates existing San Francisco Planning Department procedure to link re-zoning to the goals and policies of the San Francisco General Plan, as well as any applicable area plans such as the Eastern Neighborhoods Plan. It also highlights the importance of making sure project applications which entail re-zoning can be directly supported by these plans. Because San Francisco’s Board of Supervisors and Planning Department have a policy to make a number of findings of consistency with the City’s general plan and other local policies in the context of project approvals that involve re-zoning, the Court’s opinion should serve as a blueprint for proper “spot” rezoning in the future.
Although most projects in San Francisco do not require re-zoning, the Court of Appeal’s opinion removes some uncertainty from large or unique projects that do. It should provide assurance to both the City and project sponsors navigating San Francisco’s complex and time-consuming entitlement process that at least one common objection to a project can be taken off the table with thoughtful planning. It also reinforces the importance of ensuring accurate and thorough findings of consistency at each project entitlement stage.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.