Untitled California Attorney General Opinion ( 1990 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 89-508
of :
: APRIL 4, 1990
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Assistant Attorney General :
:
______________________________________________________________________________
THE HONORABLE DON ROGERS, MEMBER OF THE CALIFORNIA SENATE,
has requested an opinion on the following questions:
1. May a county hazardous waste management plan substantially comply with
the Planning and Zoning Law when adopted as an optional element of the county's general plan
following disapproval of the same plan by the Department of Health Services when submitted to that
department pursuant to the Hazardous Waste Control Law?
2. If a county's general plan does not substantially comply with the statutory
requirements for general plans, may the county lawfully issue building permits, grant zoning
changes or variances or approve subdivision maps?
CONCLUSIONS
1. A county hazardous waste management plan may substantially comply with
the Planning and Zoning Law when adopted as an optional element of the county's general plan even
though the same plan had previously been disapproved by the Department of Health Services when
submitted to that department pursuant to the Hazardous Waste Control Law.
2. A county may lawfully issue building permits, grant zoning changes or
variances and approve subdivision maps unless and until the court suspends the authority of the
county to take any of such actions based upon its finding that the general plan does not substantially
comply with statutory requirements in a judgment rendered pursuant to Government Code section
65754.
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ANALYSIS
Authority to Prepare Hazardous Waste Management Plans.
Two separate statutes authorize a county to adopt a hazardous waste management
plan. We shall discuss each before applying them to the facts presented in the request for this
opinion.
The Planning and Zoning Law
Title 7 of the Government Code is known as the Planning and Zoning Law. Section
65000.1 Article 5, chapter 3, division 1 (§§ 65300-65307) of that law governing local planning was
first enacted in 1953. (Ch. 1355, Stats. 1953.) Section 65300 requires each city and county to adopt
"a comprehensive, long-term general plan for the physical development of the county or city."
Section 65302 requires a general plan to have certain mandatory elements, including (a) a land use
element, (b) a circulation element, (c) a housing element, (d) a conservation element, (e) an open
space element, (f) a noise element, and (g) a safety element. Section 65303 authorizes the inclusion
in the general plan of "any other elements or address any other subjects which, in the judgment of
the legislative body, relate to the physical development of the county or city."
A hazardous waste management plan could be adopted as an optional element of the
county's general plan as authorized by section 65303. Nothing in the Planning and Zoning Law
requires approval by the state before such an element is incorporated into the general plan.
The Hazardous Waste Control Law
Chapter 6.5 of division 20 (commencing with § 25100) of the Health and Safety Code
is referred to herein as the "Hazardous Waste Control Law." Health and Safety Code section
25135.1(b) provides that "[a] county may, at its discretion, and after notification to the department
[Department of Health Services], prepare a county hazardous waste management plan for the
management of all hazardous waste produced in the county." To provide an incentive to counties
to prepare a hazardous waste management plan a grant of state funds to pay for its preparation was
authorized in Health and Safety Code section 25135.8.
Any such county hazardous waste management plan must contain the eight elements
prescribed by Health and Safety Code section 25135.1(d). Health and Safety Code section 27135.7
requires the county to submit its hazardous waste management plan to the Department of Health
Services for its approval. The same section requires the department to make four determinations
before it approves the plan. After the department approves the plan Health and Safety Code section
25135.7(b) requires the county either to incorporate the plan into its general plan or to adopt an
ordinance which requires that all applicable zoning, subdivision, conditional use permit, and
variance decisions are consistent with the portions of the county hazardous waste management plan
which identify specific sites or siting criteria for hazardous waste facilities.
A county is free to select either of these two statutes as its authority to prepare and
adopt a hazardous waste management plan. Of course, the requirements of the statute chosen would
have to be followed to adopt the plan. We have found nothing in either statute which would prevent
a county from changing from one authorizing statute to another as its authority to adopt a particular
1
Section references are to the Government Code unless otherwise indicated.
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hazardous waste management plan, providing the requirements of the statute chosen were met for
its adoption.
The factual premise for the first question is that a hazardous waste management plan
prepared by a county for adoption under the Hazardous Waste Control Law was not approved by
the State Department of Health Services. Because that department's approval is required under the
Hazardous Waste Control Law the county could not adopt the plan under that law. It does not
follow however, that the county could not use the same plan as the basis for adopting a hazardous
waste management plan under the Planning and Zoning Law. Another factual premise of the first
question is that the county adopted the disapproved plan as part of its general plan. We see no
reason why the county would not be authorized by the Planning and Zoning Law to adopt the plan
as an additional element of its general plan providing all of the requirements of the Planning and
Zoning Law were followed. We have found nothing in the Planning and Zoning Law which requires
the approval of Department of Health Services to the incorporation of a solid waste management
plan as an optional element of the county's general plan. Thus the action taken by the State
Department of Health Services under the Hazardous Waste Control Law is not relevant to the
county's action pursuant to the Planning and Zoning Law.
The department's disapproval of a hazardous waste management plan submitted
pursuant to the Hazardous Waste Control Law means the department determined that the plan
submitted did not meet all of the requirements of that law. Health and Safety Code section
25135.7(a) provides in part:
"The department shall approve the county hazardous waste management plan
if the department makes all of the following determinations:
"(1) The plan substantially complies with the guidelines [2] for the
preparation of hazardous waste management plans adopted by the department
[pursuant to Health & Safety Code section 25135.5(b)(1)].
"(2) The plan applies the methods, techniques, and policies established by the
department to analyze the waste stream and to determine whether there is a need for
additional or expanded hazardous waste facilities to safely manage and properly
dispose of the hazardous waste generated within the county.
2
The guidelines referred to are those the department is required to prepare by section
25135.5(b)(1) which must include:
"(A) A listing of types or categories of hazardous wastes that can be used in
characterizing the hazardous waste stream in each county or region.
"(B) Methods for determining the capacity of the hazardous waste facilities
that currently manage the hazardous wastes in the county or region and for assessing
the capacity of these hazardous waste facilities to manage these hazardous wastes in
the future.
"(C) Methods for assessing the need to establish new, or expand existing,
capacity for the management of hazardous wastes produced in each county or region.
"(D) Methods for estimating the amounts of hazardous waste produced by
small businesses and households."
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"(3) If the plan contains a determination pursuant to paragraph (5) of
subdivision (d) of Section 25135.1 that there is a need for additional or expanded
hazardous waste facilities, the plan proposes general areas or, as determined
appropriate by the county, proposes specific sites which may be suitable locations
for a facility. However, if the plan instead contains siting criteria for selecting sites
for new hazardous waste facilities, the plan shall propose general areas where the
criteria might be applicable.
"(4) If the county preparing the plan has entered into a formal agreement with
other counties to manage hazardous waste, the agreement is documented.
The Planning and Zoning Law contains no such requirements, nor is there any requirement in that
law that a special element (for hazardous waste management or any other subject) be approved by
any state agency before it is incorporated into a county's general plan. Thus department action on
a plan submitted for approval under the Hazardous Waste Control Law has no bearing upon approval
or adoption of the same plan under the Planning and Zoning Law.
We conclude that a county hazardous waste management plan may substantially
comply with the Planning and Zoning Law when adopted as an optional element of the county's
general plan even though the same plan had previously been disapproved by the Department of
Health Services when submitted to that department pursuant to the Hazardous Waste Control Law.
Authority to Issue Building Permits, Make Zoning Changes and Approve Subdivision Maps.
The second question submitted for this opinion asks whether a county may lawfully
issue building permits, grant zoning changes or variances or approve subdivision maps if its general
plan does not substantially comply with state law. This question asks us to assume that the county's
general plan does not substantially comply with the statutory requirements for general plans. We
therefore address the effect such noncompliance has upon the county's authority to issue building
permits, make zoning changes and approve subdivisions.
Section 65751 provides:
"Any action to challenge a general plan or any element thereof on the
grounds that such plan or element does not substantially comply with the
requirements of Article 5 (commencing with Section 65300) shall be brought
pursuant to Section 1085 of the Code of Civil Procedure."
This section provides an exclusive remedy to challenge the substantial compliance of a general plan
or element with statutory requirements. (Neighborhood Action Group v. County of Calaveras
(1984) 156 Cal. App. 3d 1176, 1188, fn. 9.) The validity of a building permit, zoning change or
variance because a relevant element of the general plan does not substantially comply with statutory
requirements may be challenged in such an action. (Neighborhood Action Group v. County of
Calaveras, supra.)3
3
The procedural difficulties in meshing such an action with section 65751 are explored in
footnote 9 of the Neighborhood Action Group opinion.
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Section 65754 provides in part:
"In any action brought to challenge the validity of the general plan of any city
[or] county . . ., if the court, in a final judgment in favor of the plaintiff or petitioner,
finds that the general plan . . . does not substantially comply with the requirements
of Article 5 (commencing with Section 65300):
"(a) The city [or] county . . . shall bring its general plan . . . into compliance
with the requirements of Article 5 (commencing with Section 65300) within 120
days. . . ."
Section 65755 provides in part:
"(a) The court shall include, in the order or judgment rendered pursuant to
Section 65754, one or more of the following provisions for any or all types or classes
of developments or any or all geographic segments of the city, county, or a city and
county until the city, county, or city and county has substantially complied with the
requirements of Article 5 (commencing with Section 65300):
"(1) Suspend the authority of the city [or] county . . . to issue building
permits, or any category of building permits, and all other related permits, . . .
"(2) Suspend the authority of the city [or] county . . . to grant any and all
categories of zoning changes, variances, or both.
"(3) Suspend the authority of the city [or] county to grant subdivision map
approvals for any and all categories of subdivision map approvals.
". . . . . . . . . . . . . . . . . . . . . . . . . . ."
The county's authority to issue building permits derives from its primary
responsibility to enforce the State Buildings Standards Code under the State Housing Law. (See
Health & Saf. Code, §§ 19825 et seq., 19120, 19130 and 18948; 65 Ops.Cal.Atty.Gen. 397, 404.)
The county's authority to grant zoning changes and variances is set forth in the Planning and Zoning
Law. (See §§ 65850, 65853 and 65906.) The county's authority to approve subdivision maps is set
forth in the Subdivision Map Act. (See § 66451 et seq.) This authority is not affected by any
assumed failure of a general plan to substantially conform to statutory requirements because the law
presumes the validity of the general plan until it is challenged in court and the presumption is
overcome by proof of its invalidity. (See People v. Johnson (1954) 129 Cal. App. 2d 1, 10 and City
of Industry v. Willey (1970) 11 Cal. App. 3d 658, 663.) The only way such a challenge may be made
is in an action brought pursuant to section 65751. It is not until that finding has been made that the
county is required by section 65754(a) to bring its general plan into compliance with the statutes
within 120 days.
In view of the assumption that the general plan does not substantially comply with
statutory requirements grounds would exist for an action to be filed pursuant to section 65751. With
proof of lack of compliance in such action the court could make the finding and judgment
contemplated by section 65754.
Section 65755 provides that in the order or judgment rendered pursuant to section
65754 the court "shall include" "one or more" of the provisions set forth in the six subdivisions of
section 65755 "for any or all types or classes of developments or any or all geographic segments of
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the . . . county." While the court must include one or more of these provisions in its judgment, it
is not required to include one of the suspensions authorized in the first three subdivisions. If the
court does include one or more of these suspensions in its judgment these suspensions may be
limited to certain types or classes of developments and may also be limited to certain geographic
segments of the county.
We conclude that a county may lawfully issue building permits, grant zoning changes
or variances and approve subdivision maps unless and until the court suspends the authority of the
county to take any of such actions based upon its finding that the general plan does not substantially
comply with statutory requirements in a judgment rendered pursuant to section 65754.
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