HomeMy WebLinkAboutLeague of California Cities - 1962 - Annexations, Subdivisio 4
Paul M. Hupf, City Attorney
City of Daly City, California
City Attorneys' Department
League of California Cities
1962 Annual Conference
Los Angeles , California
ANNEXATIONS, SUBDIVISIONS AND RESUBDIVISIONS IN CONNECTION WITH
APPLICATIONS FOR ZONING CHANGE OR VARIANCE.
Three questions will be considered in connection with the title above
mentioned. The first question is as follows:
1. A city's basic zoning ordinance provides that land, upon its annexation
to the city, shall be classified in the most restrictive zone under the
ordinance--i.e. , single-family residential.
Question: Upon annexation of land to this city, is the automatic
application of the single-family residential zone to such property valid ?
There are several points which occur which cast doubt upon the validity of
such legislation:
a) Such zoning fails to meet the procedural requirements of the
Planning Law. No public hearings have been held. No notice has
been given. No citation of authorities is necessary to establish the
failure to meet procedural requirements .
b) Such legislation not only may but most likely will fly in the face
of any Master Plan which the city in question has adopted. Almost
all master plans include some area beyond the city boundaries,
envisioning prospective zoning in the event the land is annexed to the
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city. Master plans not only may but shah encompass (emphasis ours)
"any land outside (the city's) boundaries which
in the Commission's judgment bears relation to
its planning. " Section 65460 Government Code.
c) The prospect is distinctly possible that an annexation may be
accomplished with less than unanimous approval of all landowners in
the area annexed, whether the land is inhabited or uninhabited. The
consequence of this may well be that a dissenting landowner may not
only find himself within the boundaries of an incorporated city against
his wishes , but also may find his land zoned in a single-family
residential zone against his wishes , without any opportunity to be
heard.
d) It is quite possible that an annexation may incorporate a use well
established, with substantial investment, quite at variance with the
proposed single-family residential zone.
e) No opportunity will have existed to anyone to be heard in connection
with the precise application of zoning to any parcel of property. Owners
of property other than those whose land is being zoned have a right to be
heard. (Hein vs . Daly City, infra. )
How significant are these obstacles ? It is submitted that they are so great as
to render the likelihood strong that such legislation as is comtemplated here,
in the event of challenge, would be held invalid.
Importance of Procedural Requirements . The plaintiff, in Hein vs .
Daly City, 165 Cal App 2nd 401, 332 Pac 2nd 120, owned property adjacent to
the land for which a zoning change was sought. The required number of
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hearings was held. The plaintiff, a protestant, was present at both hearings ,
pursuant to notice given, and was given a full opportunity to be heard. The
zoning change applied for was granted. On appeal, the ordinances establish-
ing the change were declared invalid. Although the court was bothered with
the prospect of spot zoning, it clearly held the zoning invalid because of
defective procedure. The Planning Commission failed to act in the manner
required and notices were in form criticized by the court. These defects were
held by the court to have vitiated the proceedings even though plaintiffs were
in no way misled.
In Hurst vs. Burlingame, 207 Cal 134, 277 Pac 308, a zoning ordinance
was adopted by initiative and held invalid.
"The Zoning Law vests in the legislative body of
the City broad discretionary power, but when the
method for the exercise of the power is prescribed
by the statute such method is the measure of the
power to act. " (emphasis added)
To the same effect is an opinion of the Attorney General, in Vol 32,
page 145 of his opinions.
In no case has any suggestion been found that a court will lightly treat
the requirement that procedural steps be followed. Rather, the opposite is the
case. Repeatedly are the procedural requirements placed alongside the local
legislative enactment to determine whether or not there was compliance.
In Kissinger vs. Los Angeles , 327 Pac 2nd 10, 161 Cal App 2nd 454,
charter requirements were involved, but the case is nonetheless appropriate
because a public hearing was not accorded to a protesting property owner.
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The court states among other things the following:
"Certainly sound common sense and wise public policy
would require an opportunity for property owners to be
heard before ordinances which substantially affect
their property rights are adopted . . . " (emphasis ours)
Reasonableness of Result. We have mentioned above that the possibil-
ity is distinct that the zoning proposed, i.e. , a single-family residential zone,
will most likely conflict with a master plan which a city previously has adopted.
That such a conflict exists in and of itself is not necessarily fatal, but when
you consider that a master plan is adopted after considerable study, after
hearing, and usually after more than casual interest on the part of the public,
it must be concluded that the planning envisioned in the master plan is one
adopted only after careful study. How, then, can one justify a clause in a
basic zoning ordinance which, in disregard of any proposal in the master plan.,
simply establishes a single-family residential zone upon any property which
may be annexed, without any hearing, without any evidence being received,
and without opportunity to be heard ? Such a result is most likely to receive
careful court scrutiny. In Kissinger, cited above, the following language may
also be found:
"As to whether an ordinance which rezones property
so as to restrict the uses which may be made of the
property is unreasonable, oppressive or discrimina-
tory, courts will inquire, for it is the duty of the
court to set aside an ordinance which under the
facts is clearly unreasonable and oppressive or
discriminatory. "
To this end also see Johnston vs. Claremont, 49 Cal 2nd 826 ,
323 Pac 2nd 71; Lockard vs . Los An eles�__33 Cal 2nd 453, 202 Pac 2nd 38;
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Wilkins vs. San Bernardino) 29. Cal 2nd 332,_175 Pa.c 2nd 542. See also cases
cited in the annotations in 51 A.L.R. 2nd 311-314. Reference may also be made
to the case of Ferris vs. Alhambra, 189 Cal A 2nd 517, 11 Cal Rptr 475.
Can anything be said in favor of such legislation ? Certainly this much
may be said: land does not exist in a vacuum; it must carry some zoning
restrictions. It further may be said that this is an easy solution to what is
otherwise a difficult problem or an awkward problem. These answers , we fear,
beg the question. The question is not, "Shall property bear some zoning
classification ?" but rather, "Shall the property annexed bear a single-family
zone classification upon annexation, without compliance with procedural re-
quirements of the Government Code ?" That the proposed zon ing represents an
easy solution to an otherwise awkward problem may be accepted, but our
responsibility as city officials cannot be discharged by seeking what is
necessarily the easiest solution.
Accordingly, it must be concluded that the validity of such legislation
as is under consideration here is exceedingly doubtful.
2. An application is made for a zoning change. As a condition of approval,
a city requires the applicant to submit a subdivision map (or, in a different
case, a map resubdividing his property).
Question: May an applicant as a condition of approval of a zoning
change be required to submit a subdivision map or a map resubdividing
his property?
in connection with all zoning problems, two apparent tests have been
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imposed by the courts:
a) Does the legislation obtain a reasonable end--i.e. , is the result
obtained within the reasonable exercise of discretion by the local
legislative body ?
b) Does the exercise of authority comply with the statutory delegation
of power?
Reasonableness of Result. No citation of authority is necessary to the
effect that courts will review the reasonableness of the legislation of a city in
connection with zoning matters. The power to legislate in the field of zoning
is a legitimate exercise of the local police power, and such authority has been
delegated to cities, but courts reserve the right to review the legislation as to
its reasonableness in object and whether or not it is arbitrary in operation.
See Clemons vs. Los Angeles , 36 Cal 2nd 95, 222 Pac 2nd 439 , cases cited
therein, and cases cited earlier in this memorandum.
Therefore, for the purposes of this discussion, it must be assumed tha-
if any condition is attached to an application for the approval of a zoning
change, such condition is a reasonable one. If not, there is little purpose in
pursuing the question further, for if the end is unreasonable, the legislation is
subject to being stricken on that ground alone. Based upon this assumption,
the question then is: May the applicant for zoning change be required to
resubdivide or subdivide as a condition of approval of his application for
zoning change ?
California decisions do not precisely reach this point. However, a
review of some is pertinent.
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Clemons vs. Los Angeles is interesting because zoning and subdivision
control are considered in the same breath,
"Zoning is an essential part of the city's over-
all master plan for community development--and a
city is vested with control of the design and
improvement of subdivisions , subject to judicial
review as to reasonableness. "
Bringle vs. Board of S 2ervisors , 54 Cal 2nd 86 , 4 CaR 493, is well
known. A variance was granted on condition requiring the dedication of land
for street purposes . The condition was upheld over objections based upon
constitutional grounds .
Ayres vs . Los Angeles , 34 Cal 2nd 31, 207 Pac 2nd 1, upheld an
approval of a subdivision map on condition that land be dedicated for street-
widening purposes in an area outside of the subdivision map.
Buena Park vs. Boyar, 186 Cal App 2nd 61, 3 CaR 674, also involved the
approval of a subdivision map conditioned upon payment of $50, 000 by the
subdivider to be used by the city for drainage work outside of the subdivision
but related to the subdivision itself.
None of the cases , it must be emphasized, involves applications for
zoning change. In each case, however, some condition was required by the
local body, the need for which was dictated by the change sought by the
applicant.
If this thread runs through these cases , as I believe it does , -what reel
reason exists to deny the application of a condition imposing an obligation to
subdivide as a condition of approval of zoning change ?
It is submitted that the trend of decisions is in this direction.
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There are two decisions in New York State quite in point. The first is
Church vs. the Town of Islip, 203 NYS 2nd 866. A change of zoning was
approved and an amendment to the zoning ordinance was adopted upon con-
dition restricting the construction to no more than 25 per cent of the area, the
erection of a certain type of fence and shrubbery and miscellaneous require-
ments. This was challenged by others than the applicant. After the trial court
found the amendment "unconstitutional, " the Appellate Division of the Supreme
Court found that the area in question was affected with enormous population
increases. The Appellate Division said:
"It is understandable that in the public interest
and in the interest of practical expediency the
practice of granting zoning changes and condition-
ing their uses by means of privately imposed re-
strictive covenants has seemingly become widespread
(citing cases). "
The Appellate Division held the practice not to be contrary to the spirit
of zoning ordinances , and not beyond the statutory power of local legislative
bodies.
The Court of Appeals, the court of last resort in New York State, with
two dissents , affirmed the judgment of the Appellate Division, reversed the
trial court, and upheld the zoning.
The second case from the State of New York is the case of Stiriz vs .
Stout, 210 NYS 2nd 325. The petitioner in this matter applied for a change o-
zone from residence to business. The application was approved upon the
condition that construction commence within one year in accordance with a
plan submitted, and if construction did not start within one year, the land
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wouid revert to residential zone. Construction was not duly commenced
within the year, and the Planning Commission reinstated the residential zone
without notice and without hearing. The petitioner, the landowner, sought to
obtain a declaration of nullity with respect to the restoration of the residential
zone. The case was decided in favor of petitioner upon the ground that the
failure to conduct a hearing, as required by the statutes in New York State,
was fatal. But the court made no quarrel with the conditions imposed. It may
be assumed that if the conditions were by the court regarded as illegal, it
would very simply have been able to invalidate the whole proceeding on that
account. The following quotation from this decision is of interest:
"That public interests are at stake in changes of
zone is clearly stated in Section 264, Town Law.
Interests affected by change of zone are not con-
fined to the owner of the property for which the
change is sought, or to the governing board of the
municipality. The interests of adjacent as well as
vicinity property owners are affected, and Section
264 is designed to afford them an opportunity to be
heard through the medium of a public hearing. The
deprivation of such right is fatal to the resolution
adopted. "
Nothing from the cases indicates that the basic statutory delegation of
authority differs substantially in New York from that of California. And it may
not be argued that the effect of these decisions fails to approve conditions
attached to zoning changes. Therefore, what real reason exists to deny the
right to impose the condition here considered ? It is submitted that there is no
more authority to require a condition that land be dedicated as a condition to
the granting of a variance or approval of a subdivision map than there is to
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require conditions such as are set forth in the above two cases.
The real objection to the requirement of a subdivision map is that it may
impose an obligation to dedicate streets and improve them. But is this a reel
objection ? We submit that it is not, because these are matters which affect
the property itself. It is most important to the property involved and to
adjacent areas that adequate provision be made for access and flow of traffic.
We fail to see any real basis for complaint on the part of applicant, in view
of the decisions above mentioned, and we can conceive of benefit to the
property of the applicant and benefit to the community.
Is such action discriminatory, in that different conditions may be
imposed upon different �:pplications ? We believe this to be no more dis-
criminatory than the application of zones itself. That one piece of proper',-,,-
has a residential zone and another a commercial zone certainly results in
different restriction for different parcels of land. However, these differing
restrictions have been sustained on the gro;znd thrit they are reasonable and in
the interest of the community development. Why, then, may not a reasc;-:� e
condition be imposed upon an application for change of zoning ? It is not a
difference in kind. It is a differing application of the same principle which
is basic to zoning itself.
We submit that reasonable conditions such as are suggested by this
question may be attached to the approval of an application for zoning chanrn .
and that the trend of decisions is to this effect.
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3. A subdivision reap is submitted with one or more sub-standard lots . The
map is approved in the same fashion as any subdivision map under the
procedures of the Map Act and local subdivision ordinance.
Question: May the map be approved without the requirement that
variance procedures be complied with?
The troubling point here again is a procedural point. The assumption
which must be made here is that the approval of a sub-standard lot is
predicated upon some hardship; otherwise there is no basis for approval of a
sub-standard lot at all.
Assuming that there is some hardship reason which dictates the
necessity for the approval of a sub-standard lot, may it be done without
following the procedures of a public hearing and notice given in the manner
set forth in Section 65,951 of the Government Code ?
An opinion from the Attorney General may be found in connection with
this section, to the effect that Section 65,951 is a general law and therefore
controls and dercands a hearing in connection with zoning excerptions , evc':
though local ordinances may not require a hearing.
We refer to authorities previously cited in this paper to the effect that
procedural requirements measure the power of the local body to act. In view
of the requirements of Section 65, 951 and in view of these decisions , it must
be considered again to be doubtful that a local body car, approve a subdivis o,
map with sub-standard lots without the requirement of a public hearing and
some form of notice being given.
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No cases have been found which precisely deal with this point or ever,
consider it in related fashion. Accordingly, in the present status of the law,
Section 65,951 of the Government Code above mentioned seems to leave little
doubt but that a public hearing is required.
CONCLUSION
It is hoped that the opinions expressed in this paper and the authorities
submitted will be useful to others as guideposts in dealing with these problems
herein involved. The writer neither holds himself out as any authority nor
makes any warranty as to the completeness of the material represented herein.
It is, however, the result of some effort and some research on these question ,
and it also represents the earnest opinion of the writer, which it is hoped wil
be us^ful.
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