News
Zoning, Planning and Use
Jul. 19, 2002
'Tahoe-Sierra' Will Encourage Use of State's Moratorium Law
Focus Column - By Daniel J. Curtin Jr. - The U.S. Supreme Court's recent decision in Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002), reaffirmed the ability of local governments to use temporary development moratoria as a planning tool without necessarily having to compensate property owners for the time period during which development is banned. In California, this tool is contained in Government Code Section 65858, the interim urgency zoning ordinance procedure.
Focus column
By Daniel J. Curtin Jr.
The U.S. Supreme Court's recent decision in Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002), reaffirmed the ability of local governments to use temporary development moratoria as a planning tool without necessarily having to compensate property owners for the time period during which development is banned. In California, this tool is contained in Government Code Section 65858, the interim urgency zoning ordinance procedure.
In Tahoe-Sierra, the Tahoe Regional Planning Agency imposed two moratoria totaling 32 months on development in the Lake Tahoe basin while formulating a comprehensive land use plan for the area. Property owners filed suit in federal court claiming that the moratoria constituted a taking of private property without just compensation.
The U.S. Supreme Court stated that, because property subject to a temporary moratorium will recover its value when the moratorium is lifted, the moratorium did not permanently deprive the owner of all economically viable use.
The high court also noted that an areawide moratorium often provides a reciprocity of advantage to affected landowners because they each benefit from protection against hasty construction by their neighbors that may be inconsistent with the land use plan that is adopted.
The court noted that, unlike the "extraordinary circumstances" in which the government deprives the owner of all economic use, moratoria are used widely among land use planners to preserve the status quo while formulating a more permanent development strategy. The court went on to say that, in fact, the consensus in the planning community appears to be that moratoria or "interim development controls" are an essential tool of successful development.
Based on this reasoning, the U.S. Supreme Court held that the temporary moratoria did not constitute a categorical taking; instead, the court applied the case-by-case balancing test of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), to the landowners' claims.
The landowners had asked the Supreme Court to set a bright-line rule that any moratorium of longer than one year was a categorical taking. The court refused to do so, stating that formulation of a general rule of this kind was more suitable for the state legislatures.
The court noted that many states (including California) had enacted legislation authorizing interim ordinances, including moratoria, with specific time limits. See Government Code Section 65858 (authorizing interim ordinances of up to two years).
This decision highlights the importance and use of interim urgency ordinances that California cities and counties have used for years to put developments on hold while they plan. Now this decision gives them some definite assurance that, if they use the procedures of Section 65858 correctly, a taking claim probably will not be successful. No doubt the use of Section 65858 will expand after Tahoe-Sierra.
A local agency's use of this procedure usually is triggered when a property owner submits a land use proposal or requests a building permit for use of property that may be in conflict with a contemplated general plan, specific plan or zoning proposal that the city or county is considering, studying or intending to study within a reasonable period of time.
In this and other like situations, Section 65858 authorizes a city or county to adopt, as an urgency measure, an interim ordinance prohibiting such uses that may be in conflict with a general plan, specific plan or zoning proposal under consideration without following the procedures otherwise required for the adoption of a zoning ordinance.
But this section contains many procedural steps that must be followed closely. For example, such an urgency measure requires a four-fifths vote of the city council or board of supervisors for adoption. No notice or hearing is required for the first adoption. See generally Beck Dev. Co. v. Southern Pac. Transp. Co., 44 Cal.App.4th 1160 (1996).
Interim urgency ordinances have statutory time limitations. If an interim ordinance initially is adopted without notice and hearing, it is effective for only 45 days from the date of adoption. However, after notice and hearing, the local legislative body may extend such interim ordinance for 10 months and 15 days, and subsequently extend the interim ordinance for an additional one year. Like the ordinance itself, extensions require a four-fifths vote for adoption. Not more than two extensions may be adopted.
Alternatively, an interim ordinance may be adopted initially by a four-fifths vote following notice and hearing, in which case it is effective for 45 days and can be extended, after notice and hearing, by a four-fifths vote for 22 months and 15 days. Section 65858(b).
Under either approach, interim "urgency" ordinances are limited by statute to a two-year period. See Bank of the Orient v. Town of Tiburon, 220 Cal.App.3d 992 (1990) (people by initiative could not add additional year to the two-year moratorium that the town council had earlier imposed).
Before adopting or extending an interim ordinance, the city council or board of supervisors must make a finding that there is a current and immediate threat to the public health, safety or welfare or that the approval of additional subdivisions, use permits, variances, building permits or the like would result in such a threat.
The findings must be contained in the ordinance. See 216 Sutter Bay Assocs. v. County of Sutter, 58 Cal.App.4th 860 (1997) (upholding interim ordinance that recited facts that "may reasonably be held to constitute" an urgency). Ten days before the expiration of the ordinance, the local legislative body must issue a written report describing the measures taken to alleviate the condition that led to the adoption of the ordinance. Section 65858(d).
Extensions beyond 45 days of an interim ordinance that have the effect of denying approvals needed for the development of projects with a "significant component" (at least one-third of the total project square footage) of multifamily housing are prohibited unless specific findings are made supported by substantial evidence.
Those findings include a conclusion that continued approval of multifamily housing projects would have a specific, adverse impact on public health or safety, that the interim ordinance is necessary to avoid that impact and that there is no feasible alternative to satisfactorily avoid or mitigate such impact. The ban on extensions does not apply to demolition, conversion, redevelopment or rehabilitation of lower-income multifamily housing. Section 65858(e), (g), (h).
Since the purpose of an interim ordinance is to preserve the status quo, an interim ordinance cannot be used to authorize construction; this authorization can only be accomplished after notice and hearing under the State Zoning Law, Section 65800 et seq. Silvera v. City of S. Lake Tahoe, 3 Cal.App.3d 554 (1970).
Nor can an interim ordinance be used to halt a use already in existence. Kieffer v. Spencer, 153 Cal.App.3d 954 (1984).
However, a court has held that an interim ordinance may be used to cancel a development agreement before the expiration of the 30-day period between approval of the agreement and its effective date. 216 Sutter Bay.
Although Section 65858 provides that an interim ordinance can be used to prohibit uses of property, it cannot be used to prohibit the processing of a development application. See Building Indus. Legal Defense Found. v. Superior Court, 72 Cal.App.4th 1410 (city of San Juan Capistrano's interim ordinance was invalid to the extent that it applied to processing of development application).
As noted above, under Section 65858, a city or county may impose a moratorium for a maximum of two years. However, on termination of a prior interim ordinance, the city council or board of supervisors may adopt another interim ordinance if the new interim ordinance arises from an event, occurrence or set of circumstances different from that which led to the adoption of the prior interim ordinance. Section 65858(f).
Daniel J. Curtin Jr. is a member in the Walnut Creek office of Bingham McCutchen.
By Daniel J. Curtin Jr.
The U.S. Supreme Court's recent decision in Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (2002), reaffirmed the ability of local governments to use temporary development moratoria as a planning tool without necessarily having to compensate property owners for the time period during which development is banned. In California, this tool is contained in Government Code Section 65858, the interim urgency zoning ordinance procedure.
In Tahoe-Sierra, the Tahoe Regional Planning Agency imposed two moratoria totaling 32 months on development in the Lake Tahoe basin while formulating a comprehensive land use plan for the area. Property owners filed suit in federal court claiming that the moratoria constituted a taking of private property without just compensation.
The U.S. Supreme Court stated that, because property subject to a temporary moratorium will recover its value when the moratorium is lifted, the moratorium did not permanently deprive the owner of all economically viable use.
The high court also noted that an areawide moratorium often provides a reciprocity of advantage to affected landowners because they each benefit from protection against hasty construction by their neighbors that may be inconsistent with the land use plan that is adopted.
The court noted that, unlike the "extraordinary circumstances" in which the government deprives the owner of all economic use, moratoria are used widely among land use planners to preserve the status quo while formulating a more permanent development strategy. The court went on to say that, in fact, the consensus in the planning community appears to be that moratoria or "interim development controls" are an essential tool of successful development.
Based on this reasoning, the U.S. Supreme Court held that the temporary moratoria did not constitute a categorical taking; instead, the court applied the case-by-case balancing test of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), to the landowners' claims.
The landowners had asked the Supreme Court to set a bright-line rule that any moratorium of longer than one year was a categorical taking. The court refused to do so, stating that formulation of a general rule of this kind was more suitable for the state legislatures.
The court noted that many states (including California) had enacted legislation authorizing interim ordinances, including moratoria, with specific time limits. See Government Code Section 65858 (authorizing interim ordinances of up to two years).
This decision highlights the importance and use of interim urgency ordinances that California cities and counties have used for years to put developments on hold while they plan. Now this decision gives them some definite assurance that, if they use the procedures of Section 65858 correctly, a taking claim probably will not be successful. No doubt the use of Section 65858 will expand after Tahoe-Sierra.
A local agency's use of this procedure usually is triggered when a property owner submits a land use proposal or requests a building permit for use of property that may be in conflict with a contemplated general plan, specific plan or zoning proposal that the city or county is considering, studying or intending to study within a reasonable period of time.
In this and other like situations, Section 65858 authorizes a city or county to adopt, as an urgency measure, an interim ordinance prohibiting such uses that may be in conflict with a general plan, specific plan or zoning proposal under consideration without following the procedures otherwise required for the adoption of a zoning ordinance.
But this section contains many procedural steps that must be followed closely. For example, such an urgency measure requires a four-fifths vote of the city council or board of supervisors for adoption. No notice or hearing is required for the first adoption. See generally Beck Dev. Co. v. Southern Pac. Transp. Co., 44 Cal.App.4th 1160 (1996).
Interim urgency ordinances have statutory time limitations. If an interim ordinance initially is adopted without notice and hearing, it is effective for only 45 days from the date of adoption. However, after notice and hearing, the local legislative body may extend such interim ordinance for 10 months and 15 days, and subsequently extend the interim ordinance for an additional one year. Like the ordinance itself, extensions require a four-fifths vote for adoption. Not more than two extensions may be adopted.
Alternatively, an interim ordinance may be adopted initially by a four-fifths vote following notice and hearing, in which case it is effective for 45 days and can be extended, after notice and hearing, by a four-fifths vote for 22 months and 15 days. Section 65858(b).
Under either approach, interim "urgency" ordinances are limited by statute to a two-year period. See Bank of the Orient v. Town of Tiburon, 220 Cal.App.3d 992 (1990) (people by initiative could not add additional year to the two-year moratorium that the town council had earlier imposed).
Before adopting or extending an interim ordinance, the city council or board of supervisors must make a finding that there is a current and immediate threat to the public health, safety or welfare or that the approval of additional subdivisions, use permits, variances, building permits or the like would result in such a threat.
The findings must be contained in the ordinance. See 216 Sutter Bay Assocs. v. County of Sutter, 58 Cal.App.4th 860 (1997) (upholding interim ordinance that recited facts that "may reasonably be held to constitute" an urgency). Ten days before the expiration of the ordinance, the local legislative body must issue a written report describing the measures taken to alleviate the condition that led to the adoption of the ordinance. Section 65858(d).
Extensions beyond 45 days of an interim ordinance that have the effect of denying approvals needed for the development of projects with a "significant component" (at least one-third of the total project square footage) of multifamily housing are prohibited unless specific findings are made supported by substantial evidence.
Those findings include a conclusion that continued approval of multifamily housing projects would have a specific, adverse impact on public health or safety, that the interim ordinance is necessary to avoid that impact and that there is no feasible alternative to satisfactorily avoid or mitigate such impact. The ban on extensions does not apply to demolition, conversion, redevelopment or rehabilitation of lower-income multifamily housing. Section 65858(e), (g), (h).
Since the purpose of an interim ordinance is to preserve the status quo, an interim ordinance cannot be used to authorize construction; this authorization can only be accomplished after notice and hearing under the State Zoning Law, Section 65800 et seq. Silvera v. City of S. Lake Tahoe, 3 Cal.App.3d 554 (1970).
Nor can an interim ordinance be used to halt a use already in existence. Kieffer v. Spencer, 153 Cal.App.3d 954 (1984).
However, a court has held that an interim ordinance may be used to cancel a development agreement before the expiration of the 30-day period between approval of the agreement and its effective date. 216 Sutter Bay.
Although Section 65858 provides that an interim ordinance can be used to prohibit uses of property, it cannot be used to prohibit the processing of a development application. See Building Indus. Legal Defense Found. v. Superior Court, 72 Cal.App.4th 1410 (city of San Juan Capistrano's interim ordinance was invalid to the extent that it applied to processing of development application).
As noted above, under Section 65858, a city or county may impose a moratorium for a maximum of two years. However, on termination of a prior interim ordinance, the city council or board of supervisors may adopt another interim ordinance if the new interim ordinance arises from an event, occurrence or set of circumstances different from that which led to the adoption of the prior interim ordinance. Section 65858(f).
Daniel J. Curtin Jr. is a member in the Walnut Creek office of Bingham McCutchen.
#337238
Columnist
Daily Journal Staff Writer
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com