“Spot Zoning” Found Permissible Where Small Parcel Given Greater Rights than Surrounding Properties and New Zoning Served the Public Interest

The Orange County Board of Supervisors (“Board”) approved a proposed senior citizen living community (“Project”) on a seven-acre parcel, creating a new zoning definition for senior residential housing and rezoning the parcel from residential single-family to the new zone district.  An association of community groups and area homeowners challenged the Project in court, alleging that the Board engaged in impermissible “spot zoning” and had not complied with the California Environmental Quality Act (“CEQA”).  The trial court agreed that impermissible spot zoning occurred, vacated the application of the new zone to the Project site, and found it “unnecessary” to rule on the CEQA challenge.  The community association appealed.  The Fourth District Court of Appeal reversed the trial court judgment, finding that although spot zoning had occurred, it was in the public interest and not impermissible.  The appellate court remanded the case to the trial court to resolve the CEQA portion of the community association’s lawsuit.  (Foothill Communities Coalition v. County of Orange (January 13, 2014, G047326, G048024) — Cal.Rptr.3d —-,Cal.App. 4 Dist.).

In reviewing the case, the appellate court explained that “spot zoning” occurs when a “small parcel of property is subject to more or less restrictive zoning than the surrounding properties.”  Typically cases involving spot zoning involve situations in which a small parcel is zoned more restrictively than those around it.  The court observed that no published California case had addressed the situation in which a small parcel received less restrictive than those surrounding it.  The court held that spot zoning does include situations in which a small parcel receives “greater rights” then those around it.  The court further held that to determine whether impermissible spot zoning has taken place, a court must apply a two part analysis:  1) whether spot zoning actually occurred; and 2) whether the spot zoning serves the public interest.

The appellate court rejected the community association’s argument that the zoning change of the Project site was impermissible because it was inconsistent with the County’s specific plan for the area.  The court noted that the zoning change aligned with state priorities because the legislature has established a 20 percent density bonus for senior housing projects.  The court also pointed out that the housing element of the county general plan described senior housing as an “important concern” and that senior housing projects are a permitted use within any residential zoning district.  The appellate court referred to a County Planning Commission staff report that found the project was consistent with the specific plan because of numerous project and architectural features designed to soften visual effects and increase compatibility with the existing residential neighborhood.  These features included wide setbacks, limited building heights, landscaping, an earthen berm on one side of the parcel, and the placement of independent living bungalows along the outer portions of the site.

The court rebuffed the community association’s contention that the Board could not change the zoning because the 1982 environmental impact report (“EIR”) for the specific plan found that the detached single-family residential zoning district was the most appropriate zoning district for the Project site.  The court found that given that the EIR was 30 years old, it was appropriate for the Board to revise the plan to suit the county’s changing needs.

The community association’s argument that approval of the project violated the First Amendment’s Establishment Clause also failed.  The association asserted that because the project was pursued by the Roman Catholic Diocese to pursue a faith-based mission of providing faith-based housing incorporating onsite faith-based services, the Board’s approval of the project was an unconstitutional entanglement between government and religion.  The appellate court found instead that the approval of the project passed the U.S. Supreme Court’s Lemon test:  the project had a secular legislative purpose of providing senior housing; the primary effect of the zoning change was to create a senior residential facility; and the zoning change did not create excessive entanglement between government and religion.

However, the appellate court agreed with the community association’s request that the trial court should be ordered to rule on the CEQA portion of the lawsuit.  The appellate court found that the trial court had only addressed the association’s zoning arguments, and it ordered the trial court to “decide whether the Project should also be blocked based on CEQA issues.”


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