Lessons from the California Constitution: Zoning is a city/county responsibility, not the state's

Perhaps this is why CM's Peralez, Arenas, and Jones didn't want the SJ City Council to discuss SB9 (a state bill that eliminates local control over land use planning): it runs counter to the clear language in the state Constitution.  The City Attorneys in San Luis Obispo explain.

Virtually every reference guide on Municipal Law begins with the premise that a city has the police power to protect the public health, safety and welfare of its residents. See Berman v. Parker, (1954) 348 U.S. 26, 32-33. This right is set forth in the California Constitution, which states “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” Cal. Const. at. XI, section 7. The ability to enact ordinances to protect the health, safety and welfare is important in the land use context because it confers very broad rights to adopt regulations that implement local land use vision and values, so long as laws enacted by a city are not in conflict with state general laws. This concept is critical because new practitioners often look to cite to a specific statute as the legal authority to adopt an ordinance when, in fact, a city’s broad land use authority flows directly from the constitution in the absence of a statutory prohibition or preemption of the city’s otherwise regulatory authority.

Land use and zoning regulations are derivative of a City’s general police power. See DeVita v. County of Napa, (1995) 9 Cal. 4th 763, 782; see also Big Creek Lumber Co. v. City of Santa Cruz, (2006) 38 Cal. 4th1139, 1159. This power allows cities to establish land use and zoning laws which govern the development and use of the community. In Village of Belle Terre v. Boraas, (1974) 416 U.S. 1, the U.S. Supreme Court addressed the scope of such power and stated: “The police power is not confined to elimination of filth, stench and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Id at 9.

One seminal land use and zoning case underscoring a city’s police power was Wal-Mart Stores Inc. v. The City of Turlock, (2006) 138 Cal. App. 4th 273, 303 where, in response to concerns over the impacts of big box stores, particularly Wal-Mart, the City of Turlock adopted an ordinance prohibiting the development of discount superstores. Wal-Mart challenged the ordinance, stating the city had exceeded its police power, but the Court disagreed. The court found the police power allows cities to “control and organize development within their boundaries as a means of serving the general welfare.” Id at 303. The important issue to understand in that case was the language of the ordinance itself. The ordinance did not, and legally could not, target specific tenants which were perceived as causing the certain impacts. However, the city could control the use and development standards of property within its community which, in effect, prohibited only a handful of big box retailers, including Wal-Mart.

Another case that highlights the city’s police power, especially at the micro-level, is Disney v. City of Concord, (2011) 194 Cal.App.4th 1410. In that case, the City of Concord adopted an ordinance restricting the storage and parking of recreational vehicles in residential yards and driveways. Among other things, the City of Concord’s ordinance limited the number of RVs on any residential property to two, required RVs to be stored in side and rear yards behind a six foot high opaque fence, prohibited RVs from being stored on front yards and driveways (with some exceptions) and established maintenance standards for RVs within the public view. James Disney filed suit. His main argument was that the ordinance exceeded Concord’s police power. The Court determined that the City of Concord’s Ordinance was a valid exercise of the city’s police power, where the ordinance had an aesthetic purpose. Citing Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 858, the Court stated “It is within the power of the Legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.” Again, as echoed by Village of Belle, supra, a city’s police power is not limited to regulating just stench and filth.

Preemption.

Although a city’s police power is broad, it is not absolute, and cannot conflict with the State’s general laws. A conflict exists between a local ordinance and state law if the ordinance “duplicates, contradicts or enters an area fully occupied by general law, either expressly or by legislative implication.” Viacom Outdoor Inc. v. City of Arcata, (2006)140 Cal. App. 4th 230, 236.

PRACTICE NOTE FOR CHARTER CITIES: Charter cities enjoy additional constitutional freedom to govern their “municipal affairs” even if a conflict with State law may exist. See Article XI, section 5 of the California Constitution. There is no exact definition of the term “municipal affair” other than those areas expressly stated in section 5. Whether a subject area is a municipal affair (over which a charter city has sovereignty) or one of “statewide concern” (over which the Legislature has authority) is an issue for the courts that depends on the facts and circumstances of each case. Land use and zoning decisions however, have been consistently classified as a municipal

affair and charter cities are exempt from various provisions of the Planning and Zoning Law unless the city’s charter indicates otherwise. See e.g. Gov. Code sections 65803, 65860(d); City of Irvine v. Irvine Citizens Against Overdevelopment, (1994) 25 Cal. App. 4th 868, 874.

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