Three Exceptions to Local Zoning Ordinances

Three Local Zoning Ordinance Exceptions

Updated on April 16, 2020

The precursor to any discussion about zoning is a discussion of land use. Land use refers to “the relationship between people and the land – more specifically, how the physical world is adapted, modified, or put to use for human purposes” (Institute for Local Government, “Understanding the Basics of Land Use and Planning”) More specifically, “land use” can be defined as the “occupation or use of land or water for any human activity or any purpose…” (Id.)
In California, municipalities derive the power to regulate land use from the police power established in the California Constitution. (California Constitution Article XI Section 7.) The California Constitution authorizes cities to adopt a “charter” that allows the city to create laws for “municipal affairs”. (California Constitution Article XI Section 5(a).) As of January 2020, there are 125 “Charter Cities” in California including Los Angeles, Long Beach, Burbank, and Huntington Beach. One such “municipal affair” that Charter Cities govern is Land Use and Zoning Regulations. (Brougher v. Bd. of Pub. Works, (1928) 205 Cal. 426.)
This blog post will first explain the general concept of zoning, using the City of Los Angeles as an example. This blog post will then examine the three exceptions to zoning laws: Conditional Use Permits, Variances, and Non-Conforming Use.

Zoning Basics – Case Study Los Angeles

Zoning affects how an owner can legally use his or her property.  As a corollary, zoning affects the property’s value.
As described by the City of Los Angeles, zoning is “a local government’s primary tool for regulating development, determining the size, shape, style, location, and permitted use of buildings in a given area.” (Los Angeles City Planning, “Zoning Code”.) All Charter Cities in California are required to establish a comprehensive “General Plan” before the city can adopt a zoning ordinance (Gov. Code Section 65860.) In a General Plan, a Charter City must establish a statement that includes the City’s “development policies” and “objectives”. (Gov. Code Section 65302.) The General Plan also must also include a number of “elements” including a Land Use Element, a Circulation Element, a Housing Element, and an Open Space Element, to name a few. (Id.) In short, a city establishes through a General Plan the general guidelines for the city’s future development. The General Plan for the City of Los Angeles may be accessed here.
The City of Los Angeles breaks the City’s land use into six (6) distinct zoning categories: Open Space, Agricultural, Residential, Commercial, Manufacturing, and Public Facilities. The City further divides these categories into subcategories. Generally, a property owner may only use a property pursuant to the use prescribed by the category and subcategory. For example, a property zoned in Los Angeles as “R2” (Category: Residential; Subcategory: Multiple Residential 2) may be legally be used for “Two Family Dwellings” but may not be used for a Child Care facility, which requires a minimum of “R3” zoning. (Generalized Summary of Zoning Regulations, Appendix E) Every property owner should be familiar with how their property is zoned.
But what happens if a property owner wants to use a parcel of real property in a manner other than the existing zoning ordinance allows? Is the property owner out of luck into perpetuity? Perhaps not.

Three Main Exceptions to Local Zoning Ordinances

California law creates three main exceptions to local zoning ordinances: 1) Conditional Use Permits, 2) Variances, and 3) Non-Conforming Uses.

Conditional Use Permits

A Conditional Use Permit (“CUP”) enables a property owner to use a parcel of real property in a manner other than which the property is zoned. A CUP may be granted when the non-conforming use of a property may be essential or desirable for a community. (Governor’s Office Planning and Research, “The Conditional Use Permit” (1997)) In a sense, this allows a city flexibility to maneuver around strict zoning ordinances as the city expands and evolves.
A CUP must be in accordance with a City’s General Plan. (Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d 1176.) This makes sense, as a General Plan is used to establish what a city finds essential and desirable to a community. Therefore, before applying for a CUP, a property owner should identify the applicable General Plan and assure that his or her intended conditional use aligns with the community’s goals. For example, in Los Angeles, a CUP must be consistent with the General Plan, the local area and community plan, and also Los Angeles County Code Title 22. (Los Angeles County Department of Regional Planning, “Conditional Use Permit (CUP) FAQ“)
As one Court put it, a proposed use must be “in the best interest of the public convenience and necessity and …not be contrary to public health, morals, or welfare.” (Upton v. Gray (1969) 269 cal.App.2d 352.) Furthermore, expanded property use permitted pursuant to a CUP must not conflict with environmental regulations such as the California Environmental Quality Act. (Public Resources Code Section 2100.) It is also important to know that a CUP runs with the land, not with the applicant. (Cohn v. County Board of Supervisors (1955) 135 Cal.App.2d 180.)
In Los Angeles, an application for a CUP is submitted to the Los Angeles County Department of Regional Planning. However, due process requires that the municipality hold a public hearing before granting a CUP to a property owner. (Gov. Code Section 65905.) The public must receive advance notice of the hearing and have an opportunity to be heard. (Horn v. County of  Ventura (1979) 24 Cal.3d 605.)
Simply because some community members find the non-conforming use undesirable does not mean the CUP application automatically fails. In Stoddard v. Edelman, a property owner sought to construct a religious temple in a Los Angeles neighborhood zoned for R3. (4 Cal.App.3d 544.) Pursuant to the Los Angeles Municipal Code, the property needed to be zoned R4 for the temple to be legally constructed on the parcel. (Id.) After the City granted the CUP, some neighbors (who had opposed granting the CUP at the City’s hearing) petitioned the court to rescind the CUP. (Id.) The neighbors argued that the temple would cause additional traffic congestion which would reduce the property values. (Id.) The Court of Appeals disagreed with the neighbors and upheld the CUP. (Id.) The Court of Appeals noted that the property owner presented evidence at the public hearing that the presence of the temple could actually reduce traffic, as opposed to an apartment building, which was permitted by R3 zoning. (Id.) Further, the City had considered the presence of similar religious facilities in other similar neighborhoods and found no reduction in property values. (Id.) Accordingly, despite the neighbors’ displeasure, the CUP was permitted to be erected. This case also shows the importance for the property owner to present sufficient evidence to the City for the City to grant the permit.
Stoddard v. Edelman offers just one example of a CUP application that was granted by a locality and upheld by the Court. There are many reasons an exception to zoning laws may be in a property owner/community’s interest. If you are a property owner and are considering applying for a CUP, you should consult with an attorney to see if you could be benefit from an attorney’s guidance through the process.

Variances

A variance is a zoning exception based on an unnecessary hardship and/or other practical difficulty suffered by a property owner. (Walnut Acres Neighborhood Assn. v. City of Los Angeles (2015) 235 Cal.App.4th 1303.)  A property owner must request a variance through a City’s zoning board, zoning administrator or another similar City department. (Gov. Code Section 65901.) Similar to a CUP, a variance application is also subject to a public hearing. (Gov. Code Section 65905.)
A variance may be granted for many reasons. For example, a variance may be granted for an unnecessary hardship based on the shape or topography of a parcel. (Eskeland v. City of Del Mar (2014) 224 Cal.App.4th 936.) A city may also grant a variance against a set-back requirement when a property is below grade. (Committee to Save Hollywood Specific Plan v. City of Los Angeles (2007) WL2455278 [Unreported case].)
Financial hardship for a property owner may also be grounds for a variance. (Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916.) In Stolman v. City of Los Angeles, an owner of a gas station was granted a variance to expand his business to include a car-detailing service. (Id.) A neighbor petitioned the court and argued that the zoning administrator abused his discretion to grant the variance. (Id.) The Court of Appeals agreed with the neighbor and rescinded the variance. (Id.) Specifically, the Court of Appeals noted that the gas station owner admitted the gas station was already profitable even without a variance. (Id.) Adding the car-detailing service would simply add to the profitability of the property. (Id.)
If you are a property owner who is suffering through an unnecessary hardship or other practical difficulty related to your property, you may benefit from obtaining a variance.  The attorney’s at Schorr Law have years of real property experience and may be able to help you through the process.

Non-Conforming Use

A Non-Conforming use is a protection against the retroactive application of a zoning ordinance. A Non-Conforming use must be permitted to continue after the effective date of a zoning ordinance. (La Mesa v. Tweed & Gambrell Planning Mill (1956) 146 Cal.App.2d 762 [Disapproved of on other grounds].) For example, imagine a property owner runs a coffee shop on a parcel of real property that is zoned for commercial use. The city then passes an ordinance changing the property’s zoning to residential. Despite the change in zoning, the property owner may continue to run the coffee shop on the property as a Non-Conforming Use. Essentially, the property is grandfathered in.
However, there are limitations on the applicability of the Non-Conforming Use exception. If the land has not actually been used for the Non-Conforming Use, the ordinance will apply. (Hill v. Manhattan Beach (1971) 6 Cal.3d 279.) Similarly, when a non-conforming use is abandoned, the property loses the exception. (Id.) Re-using coffee shop example, if the coffee shop owner closes the coffee shop for a year and moves into the property as his personal residence, he will not be permitted to re-open coffee shop as a Non-Conforming Use.
Non-conforming uses cannot enlarge an existing use. (San Diego County v. McClurken (1951) 37 Cal.2d 683.) San Diego v. McClurken involved a parcel of real property that was originally zoned for industrial use. (Id.) When the property was zoned for industrial use, the property owner placed storage tanks on the property in which he stored gasoline and fuel for industrial purposes. (Id.) A portion of the property was later re-zoned for commercial use. (Id.) The owner opened a retail gasoline station on the property and started using the gasoline storage tanks to hold gasoline for the retail store. (Id.) Although the owner used the same tanks both before and after the ordinance was passed, the Court found that the change in use from storage of gasoline for industrial purposes to storage of gasoline for retail purposes constituted an “enlargement” of the use. (Id.) The property owner lost the ability to use the tanks as a Non-Conforming Use.
If you own real property that is subject to a change in a zoning ordinance, you may be able to continue using the property in the same manner as a Non-Conforming Use. However, if you change your usage of the property, abandon the use, or enlarge the use, the property could lose  the Non-Conforming Use status. This could detrimentally affect the value of your property. If you have a potential issue involving the Non-Conforming Use of real property, you should consult with an attorney to determine your options.
The attorneys at Schorr Law have years of experience with real property issues including zoning issues, Conditional Use Permits, Variances, and Non-Conforming Use. If you are a property owner and have questions about zoning or property usage, you should consult with an attorney who can assist you in maximizing your property’s potential.
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