Zoning in California
Conditional Use Permits


Most California cities and counties have adopted ordinances that divide their jurisdictions into land use districts or zones. Within each zone a specific set of regulations control the use of land. There are often zones for single family residences, multi-family dwellings, commercial uses, industrial activities, open space or agriculture and, sometimes, mixed uses.

The authority for local zoning is derived from the police power in Article XI, Section 7 of the California Constitution. State law augments the authority by setting forth minimum standards and procedures for exercising zoning regulations. This provides cities and counties with a great deal of local discretion in controlling land use. Nevertheless, zoning, as a police power action, is invalid unless it rationally promotes the public health, safety, and welfare.

A zoning ordinance consists of a map and a text. The map identifies and delineates the boundaries of the various zones within a city or county. The text specifies zoning ordinance amendment and administrative procedures and sets forth the characteristics of each zoning category such as: permitted land uses; land uses that require conditional use permits; minimum parcel sizes; building height limitations; lot coverage limits; building setback standards; and housing unit and building densities.

While the nature of zoning ordinances is fairly well known to the general public, the relationship of zoning to the general plan may not be as apparent. A zoning ordinance may appear to duplicate the general plan, as both are concerned with land use. The zoning ordinance and the general plan each have texts setting forth development standards. Both also have community land use maps and map-like diagrams.

However, zoning ordinances are very different from the general plan. The general plan covers a wide range of land use issues and looks further into the future of an area. The general plan is policy-oriented, setting forth in general terms the context in which site-by-site decisions are made. A zoning ordinance regulates land use from the viewpoint of the individual project site. Therefore, a zoning ordinance is merely one of a variety of measures used to implement the general plan.

The general plan provides an overall perspective of the community-wide consequences of individual rezoning which are commonly initiated by local governments following an amendment, or revision of the general plan. Rezonings are sometimes necessary for maintaining zoning ordinance consistency with the general plan, although they are more commonly initiated by individual property owners or developers.

Zoning is inherently inflexible. With the exception of "charter cities," all cities and counties are subject to the same basic zoning procedures and statutory requirements (including mandatory noticed public hearings before a local planning commission and city councilor board of supervisors). Zoning standards must also be applied uniformly, while at the same time recognizing that different land parcels have their own particular characteristics. Over the years, a variety of methods have evolved to make zoning more responsive and accommodating to the many unique circumstances involving land use. "Floating zones," special purpose overlay or combining zones, mixed-use development, building block zoning and planned unit developments exemplify some of these methods.

Typically, zoning districts have permitted uses, conditional uses and accessory uses. Permitted uses are those allowed as a matter of right within the district. Conditional uses are those not allowed as a matter of right, but which may be allowed by a local administrative body subject to specific conditions, usually after a public hearing, thus having greater flexibility in applying the zoning criteria. Accessory uses are uses incidental to a primary use permitted within the zoning district such as a shed in a residential district. Zoning measures often establish various criteria with respect to types of uses, and also various aspects of the types of uses allowed, such as building heights, minimum lot sizes, set-backs from property lines, open space requirements, ratio of building floor areas to size of the lot, and other such criteria.

Planned unit development or planned development is a type of zoning classification. (This terminology also describes certain land development techniques.) The term "planned development" is also used to describe a certain type of common interest development that includes common areas and an owners association. As a zoning mechanism, planned unit development designation applies to the development of land as a unit where it is desirable to apply zoning regulations in a more flexible manner than those pertaining to other, more specific zoning classifications, and to grant diversification in the location of structures and other site qualities. The planned development zoning process is implemented by the local government's review and approval of a master plan or "precise" plan for the designated area. Approval usually includes various detailed planning and development conditions to implement the precise plan.

If a property owner desires to use property in a manner not permitted under the applicable comprehensive zoning ordinance, he may seek the administrative relief of a conditional use permit or the legislative relief of an amendment to the zoning ordinance. Such a rezoning or zoning amendment would have to be consistent with the applicable general or specific plan. If the use sought is not consistent with the general or specific plan, then an amendment of the general or specific plan would also have to be obtained.

Zoning and Use Variances

Sometimes the size, irregular shape, surroundings, unusual topography, or location of a parcel of land is such that a use of the property cannot meet a zoning standard, such as a side-yard setback. This prevents the owner from enjoying the development privileges available to other property owners in the same vicinity and zone. The disadvantaged land owner may apply to the city or county for a waiver of the strict application of a zoning standard (or standards) to his/her property. If granted, the waiver or "zoning variance" provides the property owner with the same, but not additional, development privileges as neighboring parcels in the same zone.

In California, counties and general law cities are prohibited by state law from granting use variances that authorize a land use not otherwise permitted in a zone. For instance, if retail sales are prohibited in a single-family residential zone, a zoning variance may not waive the restriction.

Conditional Use Permits

Zoning ordinances often list special land uses that are authorized in a zone subject to the granting of a conditional use permit or special use permit. Land uses requiring such permits are usually potentially incompatible with other activities existing in the zone. The proposed land use can create spillover effects such as noise, traffic congestion, or air pollution that adversely affect the public's health, safety, or welfare. Conditional use permits may authorize the use as long as tile project proponents agree to abide by conditions that alleviate the spillover effects. If the project owner fails to comply with the conditions, the local government may revoke the permit after, a public hearing is held. A conditional use permit is said to run with the land in that its provisions usually apply despite a change in ownership of the project site.