Tag: Zoning

FOURTH DISTRICT HOLDS CITY OF PALM SPRINGS’ SHORT-TERM RENTAL ORDINANCE IS CONSISTENT WITH ZONING CODE

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The Fourth District Court of Appeal in Protect Our Neighborhoods v. City of Palm Springs (Jan. 7, 2022) 73 Cal.App.5th 667 (part. pub.), upheld the City of Palm Springs’ ordinance authorizing short-term rentals in residential zones as consistent with the City’s Zoning Code.

Factual Background

The 2008 Short-Term Rental Ordinance

The City of Palm Springs’ Zoning Code authorizes two uses in a single-family residential (R-1) zone without a permit: (1) a “permanent single-family dwelling”; and (2) uses “customarily incident to the permitted uses when located on the same lot therewith.” All other uses not expressly permitted are prohibited, and the Planning Commission shall not permit commercial uses in such zones.

As a popular vacation destination, the City has expressly allowed for short-term rentals of single-family dwellings since 2008. The corresponding ordinance initially applied to rentals for 28 days or less and limited occupancy based on the number of bedrooms. Rental owners were required to register the property with the City and use “reasonably prudent business practices” to ensure that renters and their guests did not create unreasonable disturbances or engage in disorderly conduct.

The 2016–2017 Ordinance Amendments

In 2016, the City amended the short-term rental ordinance to authorize short-term rentals of single-family residences and duplexes, but not apartments. The City adopted subsequent amendments in 2017, which barred ownership of more than one vacation rental, limited rentals to 36 per year, and added new provisions for “estate homes” (5+ bedrooms) and “homesharing.” The 2017 amendments also included findings that—when taken together—confirmed vacation rentals are permitted in R-1 zones as “ancillary and secondary uses of residential properties.”

Procedural Background

Protect Our Neighborhoods, an organization of homeowners opposed to vacation rentals, filed a petition for writ of mandate alleging the 2017 amendments violated the City’s Zoning Code, General Plan, and CEQA. The trial court denied the petition. Protect Our Neighborhoods appealed on the zoning code claims, but did not appeal the trial court’s ruling on the CEQA or General Plan claims.

The Court of Appeal’s Opinion

On appeal, petitioners alleged short-term rentals violated the zoning code because they are “commercial,” not “residential” uses, and improperly change the character of the R-1 Zone. Petitioners also contended that, if the zoning code permits short-term rentals at all, it only does so on the condition that an owner obtain a land use or conditional use permit.

Conflict With the Zoning Code

Effect of a Conflict

The Court of Appeal rejected petitioners’ contention that the ordinance conflicted with the zoning code. Petitioners treated the code as some kind of “higher law” that invalidated any subsequent conflicting law, even though the zoning code and ordinance are “coequal parts of the Municipal Code.” The court thus reasoned that, to the extent they conflicted with one another, “the most recently enacted statute expressed the will of the Legislature.” Therefore, even if the ordinance and zoning code could not be reconciled, the ordinance would remain valid because the City’s findings evinced its intent to repeal any inconsistent provision of the zoning code.

Existence of a Conflict

The court also rejected petitioners’ claim that vacation rentals constituted “commercial uses” that were barred in R-1 residential zones. The court noted that R-1 zones expressly permit any use that is “customarily incident to” the use of a “permanent single-family dwelling.” A “dwelling” includes “a building or portion thereof designed exclusively for residential occupancy…” Here, the ordinance plainly states that “vacation rentals are an ‘ancillary and secondary use of residential property…’” Petitioners failed to establish that this interpretation was erroneous.

Petitioners also failed to establish how short-term vacation rentals fell within the definition of a “commercial use.” The zoning code meaningfully distinguishes between commercial stays, and the City could reasonably conclude that the short-term rental of a single-family dwelling has different impacts than the short-term rental of a 20, 50, or 100-unit motel. That vacation rentals will impermissibly change the character of the R-1 zone is equally unavailing. Petitioners mistakenly cited to the “business regulations” provision of the code’s “home occupations” chapter, which does not apply to short-term rentals. Nevertheless, even if rentals did affect nearby single-family residents, allowing them was a legislative judgment left up to the City.

The Ordinance’s Findings

Petitioners claimed the ordinance’s supportive findings were internally inconsistent because they impliedly permitted an owner to acquire property and exclusively use it as a short-term rental without ever living in it. The court observed that a property can be “residential,” even if it is vacant. The code defines “dwelling” based on whether the building is designed exclusively for residential occupancy, not whether the building is actually occupied. The building is then limited to use as a single-family residence or uses customarily incident thereto, such as vacation rentals.

Need for a Discretionary Permit

Finally, petitioners argued short-term rentals in R-1 zones required issuance of a discretionary permit. Though the zoning code only requires permits for large day cares, model homes, temporary onsite trailers in conjunction with sale of subdivision lots, accessory apartments, churches, schools, and golf courses in R-1 zones, petitioners argued that vacation rentals have greater impacts than those uses. The court rejected this by observing that the zoning code does not require permits for “similar uses” with “similar impacts.” Rather, uses customarily incident to uses as a single-family dwelling—i.e., vacation rentals—are allowed without a permit.

– Bridget McDonald

High Court Decides that Voters Can Challenge Zoning Ordinance by Referendum, Even When It Results in a More Prolonged Period of Inconsistency Between Zoning Ordinance and General Plan

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In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court upheld the decision of the court of appeal, and ruled that voters can challenge a zoning ordinance by way of referendum, even if this results in a more prolonged period of inconsistency between the zoning ordinance and general plan, at least when local government has other means available to them to make the zoning ordinance and the general plan consistent. Furthermore, the referendum process does not violate a Planning and Zoning Law provision (Gov. Code, § 65860) which mandates that inconsistencies between a zoning ordinance and a general plan be reconciled within a “reasonable time.” The court remanded the matter back to the trial court to resolve whether there were other means available to the local agency to make the general plan consistent with the referendum, should it be successful. Justice Chin filed a brief concurrence.

In making this ruling, the court expressly disapproved of deBotarri v. City of Norco (1985) 171 Cal.App.3d 1204 and cited with approval the reasoning of the recently decided Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657.

Factual and Procedural History

In November 2014, the City of Morgan Hill amended its general plan to change the land use designation of a vacant parcel from industrial to commercial, in order to allow the applicant to develop a hotel on the site. The zoning designation in the zoning code, ML-Light Industrial, remained unchanged. In April 2015, the city council voted to approve a zoning change for the site from ML-Light Industrial to CG-General Commercial, to make the zoning consistent with the amended General Plan. General Commercial is one of 12 potential commercial zoning designations in the city. Shortly afterwards, voters successfully petitioned to put forward a referendum challenging the zoning ordinance change. However, the city council directed the city clerk to discontinue processing the ordinance, believing it would make the General Plan and zoning ordinance inconsistent. In 2016, the council placed referendum on the ballot, and petitioned for a writ of mandate to have the referendum invalidated.

The trial court found for the city, relying on deBotarri for the proposition that a referendum is invalid when it would enact a zoning ordinance that is inconsistent with the general plan.

The Sixth District Court of Appeal reversed in a published decision, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34. The court of appeal expressly disagreed with deBotarri’s holding that referendums are always invalid if they reject a zoning ordinance which was enacted by the local government in order to bring a property’s zoning into compliance with the jurisdiction’s general plan. The California Supreme Court granted review.

The Supreme Court Decision

The California Constitution reserves the power of referendum for the people. It allows voters to approve or reject statutes, or parts of statutes, including enactments by local government. This power is subject to a “limited preemption” by the Legislature, and can only be abrogated by a “definite indication” or “strong showing” that preemption was intended.  Local control over land use is subject to the State Planning and Zoning Law (Gov. Code, § 65000 et seq.), which mandates that the land use element of a general plan must be consistent with local zoning ordinance, and that if an inconsistency exists, that it be reconciled within a “reasonable time” (Gov. Code, § 65860). The statutory scheme does not define “reasonable time” or give benchmarks for determining when the passage of time becomes unreasonable. To avoid the uncertainty inherent in such inconsistencies, the Government Code strongly encourages simultaneous general plan amendments and zoning code changes, although this is not required.

The core question is whether the Legislature, in enacting Government Code section 65860, intended to preempt the power of referendum, such that voters would be prohibited from placing a referendum on the ballot that, if successful, would prolong or create a create an inconsistency between the zoning and the general plan.  A related question is whether a “reasonable time” to bring a general plan and a zoning ordinance into harmony can include the time to hold a referendum, and, if successful, pursue another means of making the general plan and zoning consistent.

The court accepted the petitioner’s contention that, generally, local voters can exercise their referendum power without creating a conflict with section 65860, at least when there are other zoning designations available that would be consistent with the general plan. In announcing this rule, the court rejected defendant’s supposition that a successful referendum “revives” an out-of-compliance zoning ordinance, because a referendum does not enact a law. Rather, a successful referendum merely rejects an amendment before it takes effect. Here, even though the referendum sought to overturn the new, consistent zoning designation, the referendum would not be invalid because the original designation was valid when it was enacted (that is, the general plan amendment created the inconsistency, a situation which the Government Code permits, for a “reasonable time”).

The court acknowledged that a referendum such as this creates or prolongs a period of inconsistency between a general plan and the applicable zoning, but the Government Code allowed for such periods “to ensure an orderly process of bringing the regulatory law into conformity…”(quoting Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 546 (Lesher)). Relatedly, while the “reasonable time” allowed for city or county to conduct an “orderly process” is not defined, the court reasoned that the term was context-dependent, and, given the court’s duty to protect the referendum power, a “reasonable time” within the meaning of section 65860 must include the time necessary to bring at least one referendum challenge, and to rectify the inconsistency between the zoning ordinance and the general plan in a manner consistent with the referendum.

Answering the questions before it as it did led the court to expressly disapprove of the reasoning in deBottari and its progeny, because, although Government Code section 65860, subdivision (a) voids enactments, including initiatives from creating zoning ordinances inconsistent with the general plan, a referendum that creates a temporary period of inconsistency falls within the exception in subdivision (c) of that statute. The court also rejected the city’s argument that allowing the referendum could create a period of inconsistency lasting months if not years, finding that its duty was to harmonize, to the extent possible, the government code with the referendum power. Moreover, the inconsistency could be avoided altogether by amending the general plan and zoning code simultaneously, as suggested in the Government Code itself.

Consistent with its general rule, the court provided guidance on the types of tools that local governments have available to maintain consistency. Here, the city has twelve potential other commercial zoning designations, six of which allow hotels. The city and the petitioners disagreed as to the extent that the other zoning designations were viable for this site, but that issue was never addressed by the trial court. Nor did either party fully address the possibility that the city could create a new zoning designation that would be compliant with the general plan as amended, if no current zoning options were suitable. For these reasons the court remanded the case back to the trial court to determine whether it would be impossible for the city to make the zoning ordinance and general plan consistent.

The court also stated that the city could amend its general plan to make it consistent with zoning ordinance, and the referendum. The court noted that, in Lesher, supra, 52 Cal.3d 531, it had determined that an initiative instituting an invalid zoning ordinance cannot be used to alter a general plan, but the question of whether a referendum would be void if the city or county’s only option was to amend the general plan had not been answered. Nor did the court consider whether a local government could show that it would be futile to amend the zoning code, because no zoning designation consistent with the general plan amendment would be consistent with the intent of the referendum.

Justice Chin’s brief concurrence noted that a remand might not have been necessary, given that there appear to be other designations available. But, he acknowledged that the city could still challenge the validity of the referendum, if the city could establish that it would be impossible to make the general plan and zoning code consistent, should the referendum succeed.

Sara F. Dudley

Fourth District Upholds Negative Declaration, Finding No “Fair Argument” of Land Use Impacts

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In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal upheld the trial court’s conclusion that the City of Riverside properly adopted a negative declaration and was not required to prepare an EIR for a six-unit Planned Residential Development in the city’s Residential Conservation Zone. The court also found that the city did not abuse its discretion by approving the project with six homes on six lots.

In 2015, Real Parties in Interest, Carlton and Raye Lofgren, applied to develop approximately twelve acres of property they owned in the city’s Residential Conservation Zone (RCZ). The RCZ places special requirements on proposed residential development in order to protect the natural landscape in the zone. These requirements include submitting information on the natural slope of lots in the parcel to determine the minimum lot size (the greater the average slope, the larger the minimum lot size), and, ordinarily, a maximum density of 0.5 dwelling units per acre. Projects that qualify as Planned Residential Developments (PRDs) allow smaller minimum lot sizes and higher density. PRDs must be designed to protect and retain the natural topographic features of the site and may cluster homes in less steep areas of the site to protect such features and preserve open space. The Lofgrens also sought a density bonus to allow 0.63 dwelling units per acre by preserving 4.85 acres of the site as managed open space and selecting from a list of “superior design” elements.

As the project moved through the city’s administrative process, the acreage information fluctuated on the maps submitted by the Lofgrens (between just over 12 acres and just over 11 and a half acres) and the design of the site changed. After preparing an initial study, the city issued a negative declaration for the project. Petitioner Friends of Riverside’s Hills (Friends) commented several times during the administrative process concerning the acreage (and thus the number of allowable lots) and density. Twice, the city and/or the Lofgrens amended the project to address Friends’ concerns. Friends also argued that: the city had failed to require the Lofgrens to have a recognized conservation group oversee the open space preservation because an early version of the conditions of approval designated a homeowners’ association, the project would require excessive grading, the natural slope information submitted by the Lofgrens was inconsistent, and the project violated CEQA because it was inconsistent with the city’s zoning and grading ordinances. Ultimately, the city approved the project with the density bonus to allow six single-family homes on six lots ranging from just over a half-acre to just over an acre in size and with average natural slopes ranging from 21% to 29.5 percent.

Friends sought a writ of mandate to set aside the city’s approval and require an EIR. Friends argued that the project did not comply with the RCZ because it failed to cluster the proposed lots on the less steep portions of the site and preserve the natural features. Friends argued that the project would require excessive grading, and that the Lofgrens were required to seek a variance for lots smaller than two acres. Friends also argued that the city abused its discretion by failing to support its determination regarding the natural slope of the proposed lots and by deferring selection of the “superior design” elements to the grading permit stage of development. The trial court found that there was no evidence that the project violated any of the land use provisions identified by Friends and denied the petition. Friends appealed.

On appeal, the court found that the RCZ was adopted by the city for environmental protection purposes, so violating those provisions could create a significant impact on the environment. But, the court found that there was no evidence in the record of any of the land use impacts alleged by Friends. First, Friends claimed that the project might violate the RCZ in the future, if it did not buildout as proposed in the PRD. The court found this to be speculation because the Lofgrens had not yet submitted final plans for the location of the homes. The court also found that while the RCZ required site design to be sensitive towards the natural topographic and habitat features of the site, clustering homes in less sensitive and steep portions of the site was one way that the applicant could choose to demonstrate the required sensitivity. There was no requirement to build in the least steep area of the site.

The court also pointed out that Friends were not challenging the actual conditions of approval, but arguing that the Lofgrens might not comply with them in the future, and that could have environmental impacts. The court stated that such an argument was true in nearly all cases, and that, if the project did not comply with the permit conditions, Friends could seek supplemental environmental review at that time. Further, the conditions required the project to be built in substantial conformance with the proposed PRD. Next, the court dismissed the variance argument, finding that the minimum two-acre lot size only applied where a proposed development was not a PRD. Lastly, the court rejected the abuse of discretion claims, finding that there was substantial evidence in the record of the average natural slope of the lots to support the city’s determination that the site could support six lots. The court also found that RCZ did not require an applicant to select the “superior design” elements prior to permit approval, but, in any case, the Lofgrens had selected their preferred “superior design” elements.