Court of Appeal Upholds Spot Zoning to Allow for Senior Housing

In Foothill Communities Coalition v. County of Orange, the Fourth District Court of Appeal held that the Orange County Board of Supervisors’ spot zoning to allow senior citizen housing was permissible, reversing the decision below. Community groups and area homeowners had challenged the board’s creation and application of a new zoning definition for senior residential housing. The court upheld the board’s actions as consistent with the local general plan and the specific plan.

The Roman Catholic Diocese of Orange and Kisco Senior Living, LLC wanted to build a senior living community on a parcel of unincorporated land owned by the diocese. Under the North Tustin Specific Plan, the site was zoned as single-family residential. The Board of Supervisors amended the plan to create a new zoning district – the senior residential housing land use district – which it applied to the site. Foothill sought to prevent this development, and the trial court ruled in their favor.

The Court of Appeal reviewed the findings of plan consistency with deference to the board. The court concluded that although the board’s actions did constitute spot zoning, such zoning was permissible here. Spot zoning occurs where a small parcel of property is subject to either more or less restrictive zoning than the surrounding properties. Once a court has determined that spot zoning has occurred, it must then assess whether the zoning is in the public interest.

The court found the zoning amendment to be consistent with the state’s priority of developing senior citizen housing. The California Legislature encouraged senior housing by creating a density bonus for such projects. Furthermore, in Orange County there were 702,919 seniors in 2010, comprising nearly 22% of the county’s population. That figure is expected to increase to 945,081 by 2020 – an 86% increase in ten years. The county found that thousands of these citizens were living alone, dependent on fixed incomes and living with disabilities. Combined with the premise that specific plans “may be amended as often as deemed necessary by the legislative body” and that a project must merely be in agreement or harmony – not in rigid conformity – with a specific plan, the court found substantial evidence supported the board’s actions.

The court also disagreed with the petitioners’ argument that the project violated the Establishment Clause simply because the applicant was a religious organization. Applying the test for government entanglement in religion set forth in Lemon v. Kurtzman (1971) 403 U.S. 602, the court concluded that the zoning change and project approval had a secular legislative purpose: to provide needed housing alternatives for senior citizens in the county. The primary effect of the zoning change was not to advance religion, but rather, to create a senior residential facility. Finally, the zoning change did not create entanglement between government and religion just because the landowner was a religious organization.

The court remanded the matter to the trial court for further consideration of CEQA issues.