Attorneys for developers and public agency attorneys often have different views about the scope of development agreements. Because development agreements must be approved by an ordinance, developer attorneys often take the position that a development agreement can be inconsistent with the zoning ordinance. Public agency attorneys take a more cautious approach, but up until now, no court case has addressed this issue.
In Neighbors in Support of Appropriate Land Use v. Tuolumne County, — Cal.Rptr.3d —-, 2007 WL 4277998, Cal. App. 5 Dist., December 07, 2007, the Court of Appeal clarified that a development agreement may not authorize a use not allowed by the zoning ordinance.
The property owner in the Neighbors case owned a 37-acre parcel in the unincorporated area of Tuolumne County. The property owner wished to open a business hosting weddings on his property. The property, however, was zoned agricultural, and the hosting of commercial weddings was not an allowed use in the agricultural zone.
The owner and the County entered into a development agreement which allowed commercial weddings on the owner’s property with a conditional use permit ("CUP"). The County granted a CUP for the property.
A group of neighboring residents challenged the County’s action. The trial court reversed the County’s decision.
The Court of Appeal affirmed the decision of the trial court. The Court of Appeal explained that under the zoning uniformity rule (Government Code § 65852), land use regulations must be uniform for similar parcels within the same zone. This rule prohibited the County from granting the owner the right to engage in a use prohibited for all other parcels in the same zone. By creating an exception that benefited only one parcel in the zone, the County subverted the uniformity rule, the court observed.
The court further explained that the purpose of development agreements is to freeze existing land use regulations to provide assurance that projects will not be frustrated by future regulatory changes. Development agreements do not provide developers with the ability to avoid limitations on use under the zoning ordinance, unless the property is also re-zoned.
The court held that development agreements may not be inconsistent with the zoning ordinance; local public agencies may not, under the guise of a development agreement, authorize a use not allowed by the zoning ordinance.
The practical impact of the Neighbors case is that a development agreement which is inconsistent with applicable zoning regulations is invalid. A development agreement, in other words, cannot be a tail that wags the dog of the zoning ordinance.