Land Use 101: An Overview
of Principles Governing Land
Use Decisions
City of Cotati
Community Development Department
March 6, 2023
AGENDA-Land Use 101
§ Police Power
§ Roles of the City Council & Planning Commission
§ General Plans
§ Specific Plans
§ Zoning Regulations
§ Subdivisions
§ CEQA
§ Vested Rights/Development Agreements
§ Findings
§ Takings
§ Exactions
§ Public Rights
§ Housing
§ Questions?
Land Use Authority: Police Power
The legal basis for land use
regulation is the police power
to protect the public health,
safety and general welfare.
CA Constitution article XI, 7
sets forth the police power in
California.
State Laws:
Planning Commissions (GC 65100).
General/specific plans (GC 65300).
Zoning regulations (65800).
Subdivisions (66410).
Development agreements (65864).
CEQA (PRC 21000).
Brown Act (GC 54950).
Permit Streamlining (GC 65920).
Mitigation Fee Act (GC 66000).
Roles of the Planning
Commission/Council
Cotati=General Law City
City Council/City Manager Form of Government
City Council appoints Commission
Commission subordinate to Council
Council gives broad policy direction
City Manager directs day-to-day operations,
employees
Commission cannot direct staff w/o Council
direction
Roles of the Planning
Commission/Council
Commission & Council will hold noticed public
hearings on land use approvals.
Must consider all of the evidence and testimony
presented at the public hearing prior to making a
decision.
Public hearing process flow: open the hearing, staff
report, questions of staff, applicant presentation,
acknowledgment of written testimony, public
testimony, staff clarification/applicant response, close the hearing, Commission/Council deliberation-Action
General Plans
GC 65300
“Constitution” for all development.
Comprehensive, long-term plan for
development of city and land outside.
-Sphere of Influence
Sphere of Influence
General Plans
Seven mandatory elements:
Land use.
Circulation.
Housing.
Conservation.
Open space.
Noise.
Safety.
*2018-Environmental Justice
requirement for Disadvantaged
Communities (GC 65302(h))
General Plans
§ Comprehensive and long term.
§ Integrated, internally consistent.
§ All seven required elements.
§ Meet specified criteria, e.g. land use and
circulation correlated.
§ Presumed valid.
§ If invalid, jeopardizes decisions.
General Plans
Land use decisions must be consistent with General Plan.
Vertical & horizontal consistency.
“Consistency”:
-Horizontal-Among Elements, within Elements, Policy and Graphics
-Vertical-Other plans, ordinances and policies
- Requires decisions to be “in agreement or harmony”, not with every policy.
- Must “further/not obstruct” plan objectives-Big Picture! Deference from courts
Specific Plans
Just below General Plans.
Implement General Plans in particular areas.
Zoning & land use decisions must be consistent with
Specific Plans.
Cotati has 2 Specific Plans
Downtown Specific Plan-2009
Santero Way Specific Plan-2001
Zoning: Regulations
Divides cities into
districts.
Applies regulations to
each district.
Courts presume valid;
“hands off”.
“Reasonably” related to
public welfare.
Must be consistent with
GP.
Zoning: Regulations
Enactment
Re-Zoning Process-Ordinance
-Reclassification (“Map Amendment”) of property from
one district to another.
-“Text amendments” changing permitted uses and
regulations
https://www.cotaticity.org/DocumentCenter/View/252/
Zoning-Map-PDF
Initiative and Referendum
The people may approve or deny legislative land use
actions (General Plan and Specific Plan adoption or
amendment, Zoning text amendments &
reclassifications) through the initiative and
referendum process.
California Constitution Art. II, Sec. 8 – 11.
Initiatives and referenda cannot be inconsistent with
the General Plan.
CEQA does not apply to projects that are approved
through voter initiative.
But: Council sponsored measures!!
Zoning: Administrative Relief
Allows for relief from strict application of
zoning regulations.
Use permits (“CUP”).
Variances.
Must be consistent w/GP.
Considered “quasi-judicial”.
Run with land.
May not be made non-transferable.
Property right.
Zoning Relief: Fair Hearing
Requirement
Subdivisions
Subdivision Map Act: 66410 et seq.
Grants power to regulate design and improvement of
subdivisions.
Requires local ordinance-CMC Title 17.7.
Sets requirements for processing.
City can act where SMA silent.
Cannot act contrary to SMA.
Must be consistent w/GP.
Subdivisions
Subdivision:
“Division … of improved or unimproved land … for
purpose of sale, lease or financing….”
Types of maps:
-Tentative Map for five or more parcels.
-Parcel Map for four parcels or less.
Staff Level Actions
Lot Line Adjustments
Lot Mergers
California Environmental
Quality Act (1970)
California's broadest
environmental law
Helps to guide the City
during issuance of permits
and approval of projects
Applies to all discretionary
projects proposed to be
conducted or approved by
the City
CEQA-Purpose
Transparency - Disclose to the public and decision makers the significant environmental effects of a proposed project Initial Study (IS), Negative Declaration (ND), or Environmental Impact Report (EIR)
the decision-making process utilized to approve discretionary projects findings and statements of overriding consideration
Prevent or minimize damage to the environment
project alternatives, mitigation measures, and mitigation monitoring Enhance public participation in the environmental review process scoping meetings, public notice, public review, hearings, and the judicial process
Improve interagency coordination through early consultations, scoping meetings, notices of preparation, and State Clearinghouse review CEQA-The Law
California Public Resources Code Sections 21000-21189
CEQA Guidelines
California Code of Regulations, Title 14, Division 6, Ch. 3, Sections 1500-15387
administrative regulations that govern implementation of CEQA
reflect the requirements of the Public Resources Code
includes court decisions on interpretation & implementation of CEQA
practical planning considerations
Court decisions
Federal, State and City regulations, plans and adopted
policies
thresholds of significance
CEQA-Where it applies
Applies to government actions (“projects”) - State, local public agency involvement in an activity with the potential to physically change the environment
Activity directly undertaken by a public agency; or
Activity financed (in whole or in part) by a public agency; or Private activity that requires discretionary approval from a government agency
Discretion is based on City Ordinance - DR vs. UP
“Project” is the “whole of an action;” not each individual permit or approval-No Segmenting
Potential for physical effect on environment (direct or reasonably foreseeable indirect physical change)
CEQA-Where does it not apply?
Ministerial decisions (e.g. building permits)
Project denials
Continuing administrative activities (ex. purchase
supplies, personnel-related, general policy and
procedure making)
Preliminary actions (i.e. funding or fiscal) that don’t commit to any specific project and preserves ability to impose mitigation measures or adopt project
alternatives.
Decisions with no possibility of direct or indirect
physical change to the environment
Proposals for legislation to be enacted by State
Legislature
CEQA-Environmental Areas
Aesthetics
Agriculture & forestry
resources
Air Quality
Biological resources
Cultural resources
Energy
Geology & soils
Greenhouse gas emissions
Hazards & hazardous
materials
Hydrology and Water
Quality
Land use & planning
Mineral resources
Noise
Population & housing
Public services
Recreation
Transportation-VMTs!
Tribal cultural resources
Utilities & service systems
Wildfire
Cumulative impacts
CEQA – 3 Step Process
1) Lead Agency determines if project is subject to CEQA at all and if it is exempt.
The agency with the primary responsibility for approving a project (the “lead agency” ) is responsible for conducting CEQA review of the project.
Statutory Exemption (absolute, granted by Legislature)
CEQA § 21080.01 et seq.; Guidelines § 15260 et seq. (e.g. specific projects, emergency projects)
Categorical Exemption (determined by the Resources
Agency)
CEQA § 21084; Guidelines § 15300, et seq. (e.g., existing facilities, replacement or reconstruction)
Categorical exemptions may not apply if significant effect on environment due to “unusual circumstances”
CEQA – 3 Step Process
2) If not exempt, L.A. conducts
Initial Study (I.S.) to determine if
project may have significant effect
on environment.
Must look at the project’s direct and indirect
physical changes to the environment.
Determination must be made based on
“substantial evidence”
Substantial evidence: facts, expert opinion
supported by facts, reasonable assumptions
based on facts
Not substantial evidence: argument,
speculation, unsubstantiated opinion,
evidence that is clearly erroneous or not
credible
CEQA – 3 Step Process
3a) If I.S. shows project will not have a significant effect, the L.A. prepares a Negative Declaration (ND)
Can include a Mitigated Negative Declaration (MND)
3b) If I.S. shows project will have a significant effect, the L.A. prepares an Environmental Impact Report (EIR)
Process for preparation and review
Specific required contents (Project description, environmental impacts, mitigation measures, project alternatives, etc.) Specific findings must be made to approve projects requiring an EIR
Substantive mandate - Public agencies must refrain from approving projects with significant environmental effects if there are “feasible alternatives or mitigation measures” that can substantially lessen or avoid those effects.
CEQA – Methods for Protecting
the Environment
Change the proposed project
Impose conditions (mitigations) on project
Adopt plans or ordinances to control a broader class of projects Choose alternative way of meeting the same need
Disapprove the project
Finding that changing or altering the project is not feasible Finding that the unavoidable significant environmental
damage is acceptable
Economic, legal, social, technological or other benefits outweigh adverse environmental effects
Statement of Overriding Considerations
Vested And Contract Rights
• “Avco Rule”: Issued Permit Vests Rights!
• City may change applicable General Plan or zoning
regulations.
• No vested right to build under existing rules, unless:
building permit; substantial work; and liabilities in good faith reliance.
• But: entitlements protected by due process.
Vested and Contract Rights
Development Agreements
GC 65864 et seq.
City may enact local ordinance.
Locks in development standards, fees.
City may seek “non-nexus” benefits
Approval of DA is subject to referendum.
Public hearing required.
GP consistency, compatibility findings required.
It is a project subject to CEQA
Necessity for Findings
Topanga rule: findings required for “quasi-judicial”
decisions.
Aid decision making process and judicial review.
Findings required?
Legislative acts – NO, unless req’d. by ord./statute;
Adjudicatory/quasi-judicial acts – YES.
Record MUST contain evidence to support findings.
Staff reports, written and oral testimony, MND or
EIR, exhibits, etc.
Best “home court advantage” in the law!
Takings
5 th Amendment - “nor shall private property be
taken for public use, without just compensation.”
(also Cal. Const. Art. I, § 19.)
Agins - taking if regulation on the general use of
land or condition on specific development: (1) does
not substantially advance legitimate state interest
(nexus); or (2) denies landowner economically
viable use of land.
Lingle- #2 only!
If taking found, remedy = damages
Exactions
Imposed on development.
Map, use permit, building permit.
Dedications of land, fees.
Development: privilege, not a right-changing for housing? Must be reasonable.
Must be “nexus.”-substantially advance legitimate state interest
“Ad hoc” v. generally applicable.
Mitigation Fee Act, GC 66000.
Rights of the Public
Notice and hearing.
Findings.
Fair hearings/due process.
Financial conflicts prohibited.
Brown Act.
Permit Streamlining Act.
Public Records Act.
CEQA.
Initiative and Referendum.
Housing Overview
The availability of housing is of vital statewide importance.
Requires the cooperative participation of the government and the private sector to accommodate the housing needs of all Californians of all economic levels.
The state and local governments have a responsibility to use their powers vested in them to facilitate the development of housing to meet the needs of the community as well as
accommodating the City’s share of the regional housing needs.
State Law requires Cities to include a general plan housing element that removes various constraints to housing
development.
State Housing Goals
State Housing and Community Development (HCD)
Provision of new housing
Preservation of existing housing and neighborhoods
Reduction of housing costs
Improvement of housing conditions for special needs
groups
March 2022
September 2022
Affordable Housing
Cotati Housing Element – Commits the City to specific
goals, policies and actions of which many are required
by numerous state housing laws. Housing Elements are
reviewed and approved by HCD.
Adequate sites must be provided for new housing based
upon Regional Housing Needs Assessment (RHNA). -
6 th Cycle Began 2023-Whole new Process!
Encourage the development of second units (ADUs)
Density Bonuses
By Right Housing
Annual Production Report on 5th Cycle March 28, 2023
Current Housing Issues/Trends
Rising Construction Costs vs. Household Incomes
Mixed Use Development?
Infill Development
Higher Densities/Reduced Parking
Less Discretionary Project Review
Creative Methods to Incentivize Housing Development
Prominent Recent Housing Laws
SB 35-Ministerial Housing Project Approval
SB 330-Vesting Rights and Mandated
Timelines
Housing Accountability Act-Builders Remedy
SB 9-Right to a duplex or lot split (4 units
total)
AB 2097-No Parking w/in ½ mile of transit
ADU Regulations
CTS Limits on some Housing Laws
Supporting Information
General Plan Environmental Justice Info
https://www.unfamiliarterrain.law/2018/01/environmental-justice-element-requiredcalifornias-general-plans/ Affordable Housing Regulations
Housing Accountability Act,” GC 65589.5.
Applies to both affordable and housing projects generally.
Water & sewer priority, GC 65589.7.
“Least Cost Zoning,” =sufficient residential lands GC 65913.1.
Density Bonus Law, GC 65915.
ILG-Planning Commissioners Handbook
https://www.ilgplanninghandbook.org/housing-lawsand-policies Questions?