Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-815
of :
: February 13,
1998
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE MARSHALL S. RUDOLPH, COUNTY COUNSEL, COUNTY OF
MONO, has requested an opinion on the following questions:
1. May a county incorporate the land use designations and other provisions of its zoning
ordinances into its general plan?
2. If a county may incorporate the land use designations and other provisions of its
zoning ordinances into its general plan, may it repeal its zoning ordinances and replace them
with a single ordinance that requires all land use activity in the county to conform to its general
plan including the incorporated zoning ordinances?
CONCLUSIONS
1. A county may incorporate the land use designations and other provisions of its
zoning ordinances into its general plan.
2. If a county incorporates the land use designations and other provisions of its zoning
ordinances into its general plan, it may repeal its zoning ordinances and replace them with a
single ordinance that requires all land use activity in the county to conform to its general plan
including the incorporated zoning ordinances.
ANALYSIS
A county intends to incorporate the land use designations and other provisions of its zoning
ordinances into its general plan. May it do so, and then repeal all its zoning ordinances and
replace them with a single ordinance requiring all land use activity in the county to conform to
its general plan? We conclude that the county may incorporate its zoning ordinances into its
general plan and thereafter repeal its zoning ordinances.
Before addressing each question individually, we note the relationship between California's
local planning law (Gov. Code, §§ 65100-65763; "State Planning Law") Footnote No. 1 and its
zoning ordinance law (§§ 65800-65912; "State Zoning Law"). These legislative schemes are part
of the Planning and Zoning Law (§§ 65000-66499.58).
With respect to the requirements of a general plan, section 65300 provides:
"Each planning agency shall prepare and the legislative body of each county and city shall
adopt a comprehensive, long-term general plan for the physical development of the county, or
city, and of any land outside its boundaries which in the planning agency's judgment bears
relation to its planning. Chartered cities shall adopt general plans which contain the mandatory
elements specified in section 65302."
The general plan of a city or county is the "``"constitution" for future development' [citation]
located at the top of ``the hierarchy of local government law regulating land use' [citation]."
(DeVita v. County of Napa (1995) 9 Cal. 4th 763, 773.) "``[T]he propriety of virtually any local
decision affecting land use and development depends upon consistency with the applicable
general plan and its elements.'" (Citizens of Goleta Valley v. Board of Supervisors (1990) 52
Cal. 3d 553, 570.)
Section 65302 provides:
"The general plan shall consist of a statement of development policies and shall include a
diagram or diagrams and text setting forth objectives, principles, standards, and plan proposals. .
. ."
The general plan must contain seven specified elements (§ 65302), including a land use element
which "designates the proposed general distribution and general location and extent of the uses
of the land . . ." and "include[s] a statement of the standards of population density and building
intensity recommended for the various districts and other territory covered by the plan."
(§ 65302, subd. (a).) The general plan may include other elements or address other subjects
which, in the judgment of the legislative body, relate to the physical development of the city or
county. (§ 65303.) The general plan may be adopted in any format deemed appropriate or
convenient by the legislative body, including the combining of elements. (§ 65301, subd. (a).)
The degree of specificity and level of detail of the discussion of each element must reflect local
conditions and circumstances. (§ 65301, subd. (c).) Adoption or amendment of a general plan by
the legislative body is accomplished by means of a resolution (§ 65356), following a public
hearing (§ 65355). For most purposes, no mandatory element of a general plan may be amended
more frequently than four times in any calendar year. (§ 65358, subd. (b).)
The Legislature has expressed its purposes in requiring cities and counties to adopt general
plans. Section 65300.5 states:
"In construing the provisions of this article, the Legislature intends that the general plan and
elements and parts thereof comprise an integrated, internally consistent and compatible statement
of policies for the adopting agency."
Section 65300.7 contains the following legislative finding:
"The Legislature finds that the diversity of the state's communities and their residents
requires planning agencies and legislative bodies to implement this article in ways that
accommodate local conditions and circumstances, while meeting its minimum requirements."
Finally, section 65300.9 provides legislative recognition of the different approaches that are
possible in complying with the State Planning Law:
"The Legislature recognizes that the capacity of California cities and counties to respond to
state planning laws varies due to the legal differences between cities and counties, both charter
and general law, and to differences among them in physical size and characteristics, population
size and density, fiscal and administrative capabilities, and development issues, and human
needs. . . ."
One method of implementing a general plan is to adopt several specific plans. Section
65450 states:
"After the legislative body has adopted a general plan, the planning agency may, or if so
directed by the legislative body, shall, prepare specific plans for the systematic implementation
of the general plan for all or part of the area covered by the general plan."
As required by subdivision (a) of section 65451, a specific plan must include text and diagrams
specifying the following:
"(1) The distribution, location, and extent of the uses of land, including open space, within
the area covered by the plan.
"(2) The proposed distribution, location, and extent and intensity of major components of
public and private transportation, sewage, water, drainage, solid waste disposal, energy, and
other essential facilities proposed to be located within the area covered by the plan and needed to
support the land uses described in the plan.
"(3) Standards and criteria by which development will proceed, and standards for the
conservation, development, and utilization of natural resources, where applicable.
"(4) A program of implementation measures including regulations, programs, public works
projects, and financing measures necessary to carry out paragraphs (1), (2), and (3)."
A specific plan must include a statement of the relationship of the specific plan to the general
plan (§ 65451, subd. (b)), and it may address other subjects which in the judgment of the
planning agency are necessary or desirable for implementation of the general plan (§ 65452).
With regard to zoning ordinances, we first observe that "[z]oning is a separation of the
municipality into districts, and the regulation of buildings and structures, according to the nature
and extent of their use, and the nature and extent of the uses of land." (O'Loane v. O'Rourke
(1965) 231 Cal. App. 2d 774, 780.) Zoning is within the constitutional police power of a
municipality and is normally accomplished by local ordinances. (See Cal. Const., art. XI, § 7;
Ensign Bickford Realty Corp. v. City Council of City of Livermore (1977) 68 Cal. App. 3d 467,
473-474.) Zoning ordinances may be generally classified as regulating either the use of
buildings, structures, and land or the size of buildings, structures, and lots. (See § 65850.) The
purposes of the State Zoning Law are "to provide for the adoption and administration of zoning
laws, ordinances, rules and regulations by counties and cities, as well as to implement such
general plan as may be in effect in any such county or city. . . ." (§ 65800.)
As explained in Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal. 3d
531, 536: "Once a city [or county] has adopted a general plan, all zoning ordinances must be
consistent with that plan, and to be consistent must be ``compatible with the objectives, policies,
general land uses, and programs specified in such a plan.' (§ 65860, subd. (a) (ii).)" A zoning
ordinance is consistent with a general plan where, considering all of its aspects, the ordinance
furthers the objectives and policies of the general plan and does not obstruct their attainment.
(Corona-Norco Unified School District v. City of Corona (1993) 17 Cal. App. 4th 985, 994.)
In Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at 541, the court
noted:
". . . A zoning ordinance that is inconsistent with the general plan is invalid when passed
[citations] and one that was originally consistent but has become inconsistent must be brought
into conformity with the general plan. (§ 65860.) The planning and zoning law does not
contemplate that general plans will be amended to conform to zoning ordinances. The tail does
not wag the dog. The general plan is the charter to which the ordinance must conform."
Similarly, "no zoning ordinance may be adopted or amended within an area covered by a specific
plan unless it is consistent with the adopted specific plan." (§ 65455.)
1. Incorporating Zoning Ordinances into the General Plan
The first question to be resolved is whether zoning ordinances may be incorporated into the
general plan. This would entail adoption of a single set of land use designations to serve both the
general plan and zoning ordinances, as well as developing a comprehensive map encompassing
both the general plan's land use diagram and the zoning ordinances' maps.
As it is mandated by the Legislature that zoning ordinances must be consistent with and
promote the policies of the general plan, we believe there is no inherent reason why the general
plan may not serve as a vehicle for the land use designations and other provisions of a county's
zoning ordinances. Although a general plan diagram is not required to be parcel-specific (67
Ops.Cal.Atty.Gen. 75 (1986), nothing in the Planning and Zoning Law prohibits inclusion in the
general plan of zoning-type land use designations; indeed, several statutory provisions may be
read as favoring such course of action at least in part. The general plan may address any subjects
which, in the judgment of the legislative body, relate to the physical development of the city or
county (§ 65303); it may be adopted in any format deemed appropriate or convenient by the
legislative body (§ 65301, subd. (a)); and the Legislature has specifically recognized that "the
diversity of the state's communities and their residents requires planning agencies and legislative
bodies to implement [the general plan law] in ways that accommodate local conditions and
circumstances, while meeting its minimum requirements" (§ 65300.7).
On the other hand, various practical difficulties may be expected when a county attempts to
incorporate the land use designations and other provisions of its zoning ordinances into its
general plan. First, the general plan may only be amended four times within any calendar year.
Zoning ordinances, as specific regulations, often require more frequent amendments. Each time
there is a need to change a land use designation, the general plan would require amendment.
Combining different changes into a single amendment may well require the preparation of
complex documents describing individual and cumulative impacts.
Another practical disadvantage to the combination proposal is that general plans are to take
into consideration future conditions and needs. (See, e.g., Hoffmaster v. City of San Diego (1997)
55 Cal. App. 4th 1098, 1106-1109.) The general plan's value as a long-range planning document
may be substantially diminished if it is used to determine the application of current zoning
requirements; a general plan's diagram that also serves as a zoning map would not reflect the
timing of, or potential for, development of a given site. (See 67 Ops.Cal.Atty.Gen., supra, 79-
80.)
Nonetheless, in light of (1) the flexible nature of the general plan as contemplated by the
Legislature under the Planning and Zoning Law, (2) the fundamental requirement that zoning
regulations be consistent with the general plan, and (3) the legislative intent favoring
implementation of the general plan requirements in ways that accommodate local conditions and
circumstances, we conclude that a county may incorporate the land use designations and other
provisions of its zoning ordinances into its general plan.
2. Repealing Zoning Ordinances Incorporated Into the General Plan
Having determined that a county may incorporate the land use designations and other
provisions of its zoning ordinances into its general plan, we address the issue whether the county
may repeal the zoning ordinances that have been incorporated into its general plan and use the
general plan exclusively, as so modified, to regulate land use activity. Under this procedure,
there would be a single zoning ordinance that would require all land use activity in the county to
conform to the general plan.
Section 7 of article XI of the Constitution provides that a county "may make and enforce
within its limits all local, police, sanitary, and other ordinances and regulations not in conflict
with general laws." We believe it follows that a county may repeal local ordinances at any time
if, in so doing, no conflict with general laws results. Looking to the provisions of the State
Zoning Law, we find no such conflict. Indeed, the Legislature has expressed its intent to allow
counties wide latitude with respect to local zoning matters. Section 65800 provides:
"It is the purpose of this chapter to provide for the adoption and administration of zoning
laws, ordinances, rules and regulations by counties and cities, as well as to implement such
general plan as may be in effect in any such county or city. . . . The Legislature declares that in
enacting this chapter it is its intention to provide only a minimum of limitation in order that
counties and cities may exercise the maximum degree of control over local zoning matters."
If a county determines that its general plan may best be implemented by means of a single
zoning ordinance requiring all land use activity in the county to be consistent with the general
plan, it would appear that the county has obviated the concerns of the Legislature and the courts
that the "tail does not wag the dog." (Lesher Communications, Inc. v. City of Walnut Creek,
supra, 52 Cal.3d at 541.) In Roney v. Board of Supervisors (1956) 138 Cal. App. 2d 740, 742, a
case decided before general plans became mandatory, the court stated:
"The zoning ordinance and the subdivision ordinance of Contra Costa County are sections
of the master plan of the county, and the subdivision ordinance provides that ``In all respects the
subdivision will be considered in its relation to the adopted or proposed Master Plan of the
County.' This test was a sufficient legislative guide. [Citations.] The record shows that both the
planning commission and the board of supervisors diligently and fairly considered the
application for the land use permit in relation to the master plan of the county."
We believe that a single ordinance as contemplated here may give sufficient guidance to
applicants for land use permits, depending upon local conditions and circumstances.
We conclude that if a county incorporates the land use designations and other provisions of
its zoning ordinances into its general plan, it may repeal its zoning ordinances and replace them
with a single ordinance that requires all land use activity in the county to conform to its general
plan including the incorporated zoning ordinances.
*****
Footnote No. 1
All section references hereinafter are to the Government Code.