Opposition Brief — Lake Nacimiento Ranch Co. v. County of San Luis Obispo

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No. 87-2104

IN THE

Supreme Court of the United States

OctTosBer Term, 1987

LAKE NACIMIENTO RANCH CO.,

A California Limited Partnership,

Petitioner,

vS.

COUNTY OF SAN LUIS OBISPO, CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

THOMAS F. WINFIELD, III *

VICKI E. LAND

BROWN, WINFIELD & CANZONERI, INC.

300 South Grand Avenue, Suite 1500

Los Angeles, California 90071-3125

(213) 687-2100

Attorneys for Respondent

County of San Luis Obispo

*Counsel of Record

T eusvwere Reief Serwice / I eoal Duhlichere / (912\ 202 AAS) f/f (791A 790 1410

QUESTIONS PRESENTED

This case does not present the questions posed by Petitioner.

The only questions presented are the following:

1. Can a landowner’s claim that a general plan and zoning

ordinance, which permits multiple uses, violates the Taking

Clause as applied to its 1500-acre property be ripe for adjudica-

tion where (1) the landowner has never applied for any develop-

ment under the zoning in question and (2) has presented no

evidence that such application would be futile?

2. Can a landowner establish a facial Taking Clause claim

that a general plan and zoning ordinance deprived it of all

economically viable use of its 1500-acre property without

evidence that no uses or combinations of uses under the zoning

are economically viable?

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TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

a eenmeeeree GP PPE CASE 2... wc ces aae

A. The 1980 General Plan And Land Use

a A ere eee

ag a ree ry rere

REASONS FOR DENYING WRIT ...............

A. THE AS-APPLIED CHALLENGE WAS

PROPERLY HELD TO BE PREMATURE

UNDER THIS COURT’S SETTLED

ci h bas segs sees es eeu ees

B. THE FACIAL ATTACK WAS UNSUP-

PORTED BY EVIDENCE OF DEPRIVA-

TION OF ECONOMICALLY VIABLE

USE OR OF REASONABLE INVEST-

MENT-BACKED EXPECTATIONS ......

1. Reasonable Investment-Backed

EE ae

2. Economically Viable Use ............

Page

APPENDIX A

Excerpts from County of San Luis Obispo

General Plan Land Use Element (“LUE”) ........ A-1

APPENDIX B

Excerpts from County of San Luis Obispo Real

Property Division Ordinance and 1980 Land

Te GC IEE PD bed ocak celsee ease eces B-1

APPENDIX C

Excerpts from Pertinent California Statutes....... C-1

- ili -

TABLE OF AUTHORITIES

Page

Cases

Agins v. City of Tiburon

447 U.S. 255 (1980) 8, 17, 18, 23

American Savings & Loan Ass'n v.

County of Marin

653 F.2d 364 (9th Cir. 1981) 18

Andrus v. Allard

444 U.S. 51 (1979) 20

Austin v. City and County of Honolulu

850 F.2d 678 (9th Cir. 1988) 6

Avyco Community Developers, Inc. v.

South Coast Regional Comm’n

17 Cal. 3d 785, 553 P.2d 546,

132 Cal. Rptr. 386 (1976), appeal dismissed,

429 U.S. 1083 (1977) 15, 16

Baker v. Burbank-Glendale-Pasadena

Airport Authority

39 Cal. 3d 862, 705 P.2d 866,

218 Cal. Rptr. 293 (1985) 6

Barancik v. County of Marin

No. 87-1982 (9th Cir., June 30, 1988)

(1988 U.S. App. LEXIS 9074) 12

Board of Regents of State Colleges v. Roth

408 U.S. 564 (1972) 14

-iv-

Page

Celotex Corp. v. Catrett

477 U.S. 317 (1986) 17

Connolly v. Pension Benefit Guaranty Corp.

475 U.S. 211 (1986) 14

Cormier v. County of San Luis Obispo

161 Cal. App. 3d 850, 207 Cal. Rptr. 880 (1984) 6

Dean Tarry Corp. v. Friedlander

826 F.2d 210 (2d Cir. 1987) 16

Deltona Corp. v. United States

657 F.2d 1184 (Ct. Cl. 1981), cert. denied,

455 U.S. 1017 (1982, 16

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles

482 U.S. _, 107 S. Ct. 2378,

96 L. Ed. 2d 250 (1987) 6

Florida Rock Industries, Inc. v. United States

791 F.2d 893 (Fed. Cir. 1986), cert. denied,

107 S. Ct. 926 (1987) 19

Furey v. City of Sacramento

592 F. Supp. 463 (E. D. Cal. 1984), aff'd

780 F.2d 1448 (9th Cir. 1986) 15, 16

Graham v. Estuary Properties, Inc.

399 So. 2d 1374 (Fla. 1981) 16

Page

HFH, Ltd. v. Superior Court

15 Cal. 3d 508, 542 P.2d 237,

125 Cal. Rptr. 365 (1975), cert. denied,

425 U.S. 904 (1976) 15

Hadacheck v. Sebastian

239 U.S. 394 (1915) 18

Herrington v. County of Sonoma

834 F.2d 1488 (9th Cir. 1987) 9,12

Hodel v. Virginia Surface Mining &

Reclamation Ass'n, Inc.

452 U.S. 264 (1981) 7,8

Keystone Bituminous Coal Ass'n v. DeBenedictis

480 U.S. ___, 107 S. Ct. 1232 (1987) 14, 17, 18

Kinzli v. City of Santa Cruz

818 F.2d 1449, modified, 830 F.2d 968

(9th Cir. 1987), cert. denied,

108 S. Ct. 775 (1988) 11

Lake Nacimiento Ranch Co. v. County of

San Luis Obispo

830 F.2d 977, modified, 841 F.2d 872

(9th Cir. 1987)

MacDonald, Sommer & Frates v. County of Yolo

477 U.S. 346 (1986) 7, 8, 12, 13

MacLeod v. County of Santa Clara

749 F.2d 541 (9th Cir. 1984), cert. denied,

472 U.S. 1009 (1985) 16, 19

- vi -

Page

Nemmers v. City of Dubuque

716 F.2d 1194 (8th Cir. 1983) 16

Pace Resources, Inc. v. Shrewsbury Township

808 F.2d 1023 (3d Cir. 1987),

cert. denied, 107 S. Ct. 2482 (1987) 16

Park Avenue Tower Associates v.

City of New York

746 F.2d 135 (2d Cir. 1984), cert. denied,

470 U.S. 1087 (1985) 19

Penn Central Transportation Co. v.

City of New York

438 U.S. 104 (1978) 5, 13-15, 17,18

Pennell v. City of San Jose

108 S. Ct. 849 (1988) 13

Pompa Construction Corp. v. City of

Saratoga Springs

706 F.2d 418 (2d Cir. 1983) 19

Ruckelshaus v. Monsanto Co.

467 U.S. 986 (1984) 14-16

San Luis Obispo Properties, Inc. v.

Pacific Gas & Elec. Co.

28 Cal. App. 3d 556, 104 Cal. Rptr. 733 (1972) 20

- Vil -

Shelter Creek Development Corp. v.

City of Oxnard

838 F.2d 375 (9th Cir. 1988), petition for

cert. filed (U.S. July 15, 1988) (No. 88-86)

Thorpe v. Housing Authority of City of Durham

393 U.S. 268 (1969)

Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926)

Webb's Fabulous Pharmacies, Inc. v. Beckwith

449 U.S. 155 (1980)

Wheeler v. City of Pleasant Grove

664 F.2d 99 (Sth Cir. 1981), cert. denied,

456 U.S. 973 (1982)

Williamson County Regional Planning Comm'n

v. Hamilton Bank

473 U.S. 172, 105 S. Ct. 3108 (1985)

Yale Auto Parts, Inc. v. Johnson

758 F.2d 54 (2d Cir. 1985)

Yick Wo v. Hopkins

118 U.S. 356 (1886)

Constitution

United States Constitution

Fifth Amendment

Fourteenth Amendment

Page

14,15

6-8, 12-14

- Vill -

Federal Statute

42 U.S.C. § 1983

State Statutes

California Government Code:

Section 51200 et seq.

Section 65302

Section 65358

Section 65361

Section 65906

Section 66474 (a)

California Revenue & Tax Code:

Section 423

Section 423.3

Local Regulations

1980 General Plan and Land Use Ordinance

(1980 LUE/LUO)

Rea! Property Division Ordinance:

Section 21.48.017

Section 21.48.090

Land Use Ordinance:

Section 22.01.044

Section 22.08.0612

Page

Passim

ll,

ae he

10, 22

No. 87-2104

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

LAKE NACIMIENTO RANCH CO.,

A California Limited Partnership,

Petitioner,

VS.

COUNTY OF SAN LUIS OBISPO, CALIFORNIA,

Respondent.

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

In this action, petitioner sought declaratory and injunctive

relief, as well as damages under 42 U.S.C. § 1983, on the

theory that the County of San Luis Obispo’s (“County’s’’)

1980 General Plan and Land Use Ordinance had deprived its

property of all economically viable use in violation of the

Fifth and Fourteenth Amendments of the United States

Constitution. !

1 In the courts below, petitioner also sought relief on a procedural due

process theory based upon an alleged conflict of interest of a member of the

County Board of Supervisors. Petitioner has abandoned the due process

claim in its petition; it seeks certiorari only on the taking claim.

ciiiiaielaldaataaa aati i

The District Court granted the County’s motion for sum-

mary judgment in an unpublished opinion (Appendix D to

Petition for Certiorari). The Ninth Circuit affirmed in an

Opinion reported at 830 F.2d 977 (Appendix A to Petition),

and subsequently modified its decision in an opinion reported

at 841 F.2d 872 (Appendix B to Petition). It also denied

petitioner’s petition for reconsideration and suggestion for

rehearing en banc (Appendix C to Petition).

A. The 1980 General Plan and Land Use Ordinance.

California law requires each county to develop and

maintain a comprehensive long-term General Plan for

development, including a Land Use Element, which describes

the County’s official policy on the location, growth and

development of land uses. Cal. Gov’t Code § 65302.2 The

County’s zoning ordinance (now called Land Use Ordinance)

States its development standards and review procedures.

In 1980, the County amended the Land Use Element

(“LUE”) of its 1971 General Plan and its Land Use Ordinance

(“LUO”). These amendments (the “1980 LUE/LUO”), which

affected the Lake Nacimiento area in which petitioner’s

property lies, are the target of petitioner’s taking claim.

Lake Nacimiento, an artificial reservoir created in 1960 to

serve agricultural needs, lies in a remote area in northern San

Luis Obispo County. Development has taken place since the

creation of the lake, but in 1980 the economy of the region

was still based upon agriculture, principally grazing and dry

farming.

2 California code sections of particular pertinence are contained in

Appendix C hereto. Relevant extracts of the County's 1980 General Plan

and ordinances are contained in Appendices A and B. Additional portions

of those documents were appended to the County's brief in the Ninth

Circuit.

. e

In 1980, public services around the lake, such as fire and

police protection, were minimal, no public medical facilities

existed within 25 miles, and roads and domestic water sup-

plies were inadequate for estimated future needs. The

County’s tax base for financing new public services was

limited. The County was also concerned about potential

environmental damage to the lake and its watershed from

further development.

To slow development until these problems could be solved,

the 1980 LUE/LUO reduced the residential densities previ-

ously allowed for the existing developments around the lake

and reclassified most of the remaining privately owned,

undeveloped land from an “L (Recreation)” zone to a “Rural

Lands” category.

The Rural Lands category, like the L (Recreation) zone,

permitted single-family residences (increased to two per

parcel) and light agricultural uses as a matter of right. In all,

the Rural Lands category contains 8 groups of uses allowed as

of right and 42 groups of special uses (allowable subject to

special standards and/or processing requirements; South Shore

standards restrict 12 of the 42 groups of special uses). See

Appendix A. Each group may include multiple individual

uses. For example, the “Rural Sports and Group Facilities”

group includes hunting and fishing clubs, dude ranches, health

resorts, recreational camps, group camps, and equestrian

facilities.

B. Petitioner’s Property.

Petitioner’s approximately 1,500 acres on the south shore of

Lake Nacimiento (the “South Shore Property”) are part of an

approximately 3,000-acre tract on the north and south shores

purchased by its partners and their ancestors in 1964 (CR 140).

Part of the tract was sold, and the remaining property is held

in two limited partnerships (CR 124, Exs. V, G & H).

The South Shore Property has nine legal parcels (CR 124,

Ex. K). There are no improvements other than a small corral

and cattle-loading facility, worth about $100, and a one-lane

“chip and seal” road (CR 124, Exs. V, w).? Petitioner’s

investors acquired the South Shore Property for investment,

and the only use to which they have ever put the property

since 1964 is to hold it for investment and to lease it in the

interim for livestock grazing and equestrian purposes (CR 124,

Ex. V).

Under the 1980 General Plan, the South Shore Property is

primarily Rural Lands, except for a small parcel designated

Recreation. In 1981, petitioner applied for a general plan

amendment to place approximately 800 acres in the Recreation

category (CR 39). The Planning Commission recommended

approval for 630 acres, but after public hearing, the Board of

Supervisors denied the application (id.).

At no time did petitioner or its predecessors present the

County with an application to develop the property under the

Rural Lands category (CR 124, Exs. V, W).

When petitioner’s investors formed their limited partner-

ship in 1975, they valued the South Shore Property at $521,000

(CR 124, Ex. G). Petitioner admitted that between 1975 and

the time of the alleged taking, it only expended $66,565 on

taxes and other expenses, and that it sold part of the property

for $50,000 and received grazing lease income of $6,100 (CR

124, Ex. W).4 It also admitted that the South Shore Property

had a market value of $992,500 immediately following the

3 The North Shore portion of the property acquired in 1964, on the other

hand, has been fairly intensively developed. Petitioner’s investors received

substantial income from a sale of a portion of this property, and the

remaining property is zoned for uses that include multi- and single-family

housing, marinas, theaters, swim and tennis clubs, and commercial and

retail uses, among others (1980 LUE/LUO).

4 In 1983 petitioner also obtained $500,000 in a refinancing of the

property (id., Ex. I).

~ vs

alleged taking (giving petitioner a potential profit of $461,035

over the 1975 investment value), and that by March 1984 the

market value of the property had increased to $1,740,000

(over three times the amount of its 1975 investment value)

(see CR 124, Ex. U).

REASONS FOR DENYING WRIT

The principal reasons why this Court should not grant

certiorari in this case are that

(1) while petitioner poses some interesting abstract

questions for the Court to answer, those questions

are not presented by this case; and

(2) the claimed conflicts between the decisions of this

Court and the Ninth Circuit, or between those of the

Ninth Circuit and other circuits, simply do not exist.

This case, therefore, does not meet any of the “special and

important reasons” set forth in Supreme Court Rule 17 for

granting certiorari.

What petitioner has requested of this Court is to issue an

advisory opinion on the parameters of taking claims. To

comply would contravene the constitutional and policy

prohibitions on the issuance of advisory opinions,” as well as

the important policy laid down by this Court through decades

of experience, that the decision of whether a regulation

constitutes a taking can only be made after a careful analysis

of the facts of each case. See Penn Central Transportation

Co. v. City of New York, 438 U.S. 104, 124 (1978). That

policy is of particular importance here, where the sole ground

5 As this Court stated in Thorpe v. Housing Authority of City of Durham,

393 U.S. 268, 284 (1969): “We do not sit, however, ‘to decide abstract,

hypothetical or contingent questions... or to decide any constitutional

question in advance of the necessity for its decision... .’”

of attack was on the economic viability of remaining uses,°

an inquiry unique to the facts of each case.

The springboard for all petitioner’s questions is its asser-

tion that the undisputed evidence established that no economi-

cally viable use exists on its property under Rural Lands.

Petitioner doubtless makes that assertion to suggest the

existence of substantial, unresolved federal issues, but the

assertion is false. There was, indeed, uncontradicted evidence

of economically viable use, and it was petitioner’s failure to

introduce controverting evidence that caused both courts

below to subject petitioner’s facial claim to summary judg-

ment.

As to petitioner’s as-applied attack, the Ninth Circuit

properly determined that the claim was premature. Not-

withstanding petitioner’s incorrect argument that the Ninth

Circuit has applied ripeness rules more rigidly than is war-

ranted by decisions of this Court, the challenge is premature

under this Court’s standards, because petitioner never made

any application for development under Rural Lands, and it

submitted no evidence that such an application would be

futile. Finally, even had its as-applied claim been decided on

the merits, both courts below correctly found that the evidence

failed to present a triable issue as to deprivation of all eco-

nomically viable use.

Petitioner did not and does not claim that the 1980 LUE/LUO fails to

advance a legitimate state interest. Those amendments have previously

been held constitutional in Cormier v. County of San Luis Obispo, 161 Cal.

App. 3d 850, 207 Cal. Rptr. 880 (1984).

The Ninth Circuit did not address the other arm of the ripeness analysis,

availability of an adequate state remedy, presumably because “at the time

of the taking” California did not permit recovery of damages in regulatory

taking cases. Williamson County Regional Pianning Commission v.

Hamilton Bank, 473 U.S. 172, 105 S. Ct. 3108, 3121 (i985); see Firs:

English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. ___, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987); Austin v.

City and County of Honolulu, 850 F.2d 678, 681 (9th Cir. 1988); Baker v.

Burbank-Glendale-Pasadena Airport Authority, 39 Cal. 3d 862, 867 n.4,

705 P.2d 866, 218 Cal. Rptr. 293 (1985).

A. THE AS-APPLIED CHALLENGE WAS

PROPERLY HELD TO BE PREMATURE

UNDER THIS COURT’S SETTLED

STANDARDS.

Petitioner claims that the Ninth Circuit too rigidly applied

the ripeness tests of Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985), and

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S.

340 (1986), by requiring it to apply for a development plan

and to seek a waiver or variance to achieve ripeness.

Petitioner misconstrues the relevant authorities. This Court

stated in Williamson County that “[a]s the Court has made

clear in several recent decisions, a claim that the application

of government regulations effects a taking of a property

interest is not ripe until the government entity charged with

implementing the regulations has reached a final decision

regarding the application of the regulations to the property at

issue.” 473 U.S. at 186.’

The Court referred to Hodel v. Virginia Surface Mining &

Reclamation Ass'n, Inc., 452 U.S. 264 (1981), in which it

rejected an as-applied claim as premature because:

“There is no indication in the record that appellees

have availed themselves of the opportunities provided

by the Act to obtain administrative relief by requesting

either a variance from the approximate-original-

contour requirement of § 515(d) or a waiver from the

surface mining restrictions in § 522(e). If appellees

were to seek administrative relief under these proce-

dures, a mutually acceptable solution might well be

U A zoning ordinance, by its nature, is usually applied to a piece of

property when the owner applies for development under that ordinance.

The usual as-applied zoning challenge thus differs from other kinds of

as-applied regulatory challenges, which arise when government attempts to

enforce the regulation against the individual. See, e.g., Yick Wo v.

Hopkins, 118 U.S. 356 (1886).

reached with regard to individual properties, thereby

obviating any need to address the constitutional

questions.” Hodel, 452 U.S. at 297 (footnote omitted).

Similarly, in Agins v. City of Tiburon, 447 U.S. 255 (1980),

the Court held that an as-applied challenge to a zoning or-

dinance was not ripe because the property owners had not yet

submitted a plan for development of their property.

Williamson County ruled that the owner’s claim was in a

posture similar to that in Hodel:

“Respondent has submitted a plan for developing its

property, and thus has passed beyond the Agins

threshold. But, like the Hodel plaintiffs, respondent

did not then seek variances that would have allowed it

to develop the property according to its proposed plat

. It appears that variances could have been granted

to resolve at least five of the Commission’s eight

objections to the plat.

“... Absent a final decision regarding the application

of all eight of the Commission’s objections, it is

impossible to tell whether the land retained any

reasonable beneficial use ....” 473 U.S. at 187-188

& n.il (emphasis in original).

MacDonald, Sommer & Frates held the claim there was

premature despite the rejection of a development plan for

intensive residential development, because that denial did not

preclude the availability of less intensive, but still valuable,

development, 106 S. Ct. at 2568 & n.8. As the Court stated:

“Rejection of exceedingly grandiose development plans does

not logically imply that less ambitious plans will receive

similarly unfavorable review.” /d. at 2569, n.9.

In this case, unlike the owners in Williamson County and

MacDonald, Sommer & Frates, petitioner never “passed

beyond the Agins threshold” because it never applied for any

development plan, formal or informal, under Rural Lands.

As petitioner correctly notes (pp. 19-20), the only applica-

tion it ever made was its 1981 application for an amendment

of the General Plan and LUO to rezone 800 acres to Recrea-

tion, a different land use category. That application, as

petitioner also correctly notes, simply has no bearing on the

issue Of what development the County might or might not

permit under the Rural Lands category.

The “informal proposal”® provided with the amendment

application contemplated using the property as a recreational

vehicle (“RV”) park, which is not a permissible use under

Rural Lands (see Appendix A). While California law gives

the County the power to grant many waivers and variances, it

prohibits waivers or variances to permit uses not allowable

under a land use category, Cal. Gov’t Code § 65906 (West

1983), and prohibits approval of any development plan that is

inconsistent with the General Plan, Cal. Gov’t Code

§ 66474(a) (West 1983).”

The denial of petitioner’s amendment application thus

provides no information about what uses the County would

permit within the Rural Lands category.'° As to that clas-

sification, petitioner never submitted any application.

8 In fact, the “informal proposal” was not an application for an RV park

at all. It was an informal sketch submitted to the County with the applica-

tion for LUE/LUO amendment to provide some parameters for the

necessary environmental impact assessment (CR 116, Ex. N).

9 See Herrington v. County of Sonoma, 834 F.2d 1488, 1496 (9th Cir.

1987), construing that provision.

10 Far from applying the ripeness rules rigidly, the Ninth Circuit gave

petitioner the benefit of the doubt by assuming that petitioner’s submission

constituted an informal development proposal. It nevertheless held that in

light of the fact that “[t]he County’s response specified the numerous

deficiencies in the informal proposal and suggested ways to remedy

them, ... the County’s denial of this informal request is not a final and

authoritative decision exposing the nature and extent of permissible

development under the Rural Lands classification.” (Slip op., Appendix

B-10 to Petition.)

» Ma

Petitioner argues (pp. 21-22) for the first time that an

application would have been futile because, it claims, the

uncontradicted evidence showed that no economically viable

uses were available under Rural Lands — even by waiver or

variance.'' That argument is a flat misstatement of the

record, as is discussed fully in Part B.2 below regarding

economic viability. Both courts below correctly held that,

taking the evidence in the light most favorable to petitioner,

there was no triable issue of fact to support the claim of

deprivation of economically viable use.

The 1980 LUE/LUO does not limit petitioner to a single

use of its 1,500-acre property; it permits different uses or

combinations of uses on each of the nine legal parcels of

property. As the Ninth Circuit properly noted, in addition to

the extensive list of available uses contained in the LUE/LUO,

waivers, variances and other statutory procedures are available

to expand development potential within the Rural Lands

classification and to improve the economic potential of the

available uses.

Further, as the Ninth Circuit emphasized, LUO § 22.08.012

(cited as 22.08.120 in the opinion) allows the Planning

Commission to waive or modify standards for permissible uses

if it finds that specific conditions make the standards un-

necessary or ineffective, and LUO § 22.01.044 allows a

variance from development and planning area standards (other

than parcel size or density) if special circumstances such as

topography or property location would deprive the property of

privileges enjoyed by other properties.

In addition, Real Property Division Ordinance § 21.48.090

permits modification of road and drainage specifications (road

11 Petitioner fails to explain how one can assert an as-applied claim when

no application has ever taken place. If it were true that the Rural Lands

category permitted no economically viable use —— even after consideration

of all available waivers and variances —— then the attack would be a facial

one.

sas

requirements having been a significant factor in petitioner's

economic analysis), and § 21.48.017 permits adjusting parcel

lines, which could permit maximizing the economic potential

of the various parcels.

Of particular significance to this property, which has

historically been used for cattle and horse grazing, an agricul-

tural preserve designation could dramatically lower taxes on

the property and permit a profitable operation. !

The undisputed evidence below was that waivers and

variances are not only available, but are routinely granted by

the County. Petitioner does not argue otherwise.

Therefore, petitioner’s as-applied challenge must fail

because it never made any application for development under

Rural Lands, because extensive combinations of uses are

available under that category, and because numerous waivers,

variances, and other statutory procedures are available that

could significantly enhance the development potential of the

property. Where an unquestionabiy correct result has been

reached under this Court's settled standards, no important or

undecided question is presented for this Court's review.

Moreover, petitioner is incorrect that the Ninth Circuit is

applying an overly rigid framework for ripeness analysis. !*

12 Petitioner complained below that property taxes had exceeded the

grazing lease income from the property. It has not, however, availed itself

of the Williamson Act, Cal. Gov't Code § 51200 et seq., by which land may

be restricted by contract to agricultural uses. In such cases, the county

assessor may not consider sales data in valuing the property, but may only

value the property by capitalizing the annual rental income actually

received and typical rents received in the area for similar land in similar

use, or where such rental information is not available, based upon the

income which such land reasonably would be expected to yield under

prudent management. Cal. Rev. & Tax Code § 423. The property might

also qualify for an even lower tax rate. See Cal. Rev. & Tax Code § 423.3.

13 Indeed, this Court previously denied certiorari in Kinzli v. City of

Santa Cruz, 818 F.2d 1449, modified, 830 F.2d 968 (9th Cir. 1987), cert.

denied, 108 S. Ct. 775 (1988), the case establishing that framework. If no

reason existed to grant certiorari in Kinzli, certainly none exists here.

- 12.

The Ninth Circuit correctly stated the general rule, derived

from Williamson County and MacDonald, Sommer & Frates,

that at least one meaningful application for a development

plan and a meaningful application for a variance must be

presented before a futility argument can be presented. There

was no reason to depart from that general rule in this case,

where no application had been made and no evidence of

futility existed.

In fact, the Ninth Circuit has not mgidly applied the

ripeness analysis where the facts demonstrate finality. In

Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir.

1987), for example, the court held the claim to be ripe even

though the owner had not fully completed the application

process and had not applied for a variance, because the

requisite finality of decision had been achieved, and no

variance was available within that zone. Further, noting that

MacDonaid had held that a re-application may be necessary to

analyze economic impact, Herrington held that no re-

application was necessary because the gravamen of that case

was the irrationality of the ordinance, not its economic impact.

Thus, the difference in ripeness analysis depends on the

nature of the claim, and is not a difference in standards, as

suggested recently in Barancik v. County of Marin, No.

87-1982 (9th Cir., June 30, 1988) (1988 U.S. App. LEXIS

9074). The other recent Ninth Circuit cases, including Baran-

cik, Herrington, and Shelter Creek Development Corp. v. City

of Oxnard, 838 F.2d 375 (9th Cir. 1988), petition for cert.

filed (U.S. July 15, 1988) (No. 88-86), involved claims that

the ordinances violated due process in that they advanced no

legitimate state interest or that they violated equal protection.

On appeal, none involved a claim of deprivation of all eco-

nomically viable use.

This case, on the other hand, is based solely on the eco-

nomic impact of the 1980 LUE/LUO on petitioner’s property

(even if it were viewed as a due process claim that the or-

dinance had “gone too far,” see Williamson County, 105 S. Ct.

«fh.

at 3122-24). Such a claim, as every Justice of this Court has

recognized, requires an evaluation of “the nature and extent of

permitted development before adjudicating the constitution-

ality of the regulations that purport to limit it.” MacDonald,

477 U.S. at 359; Williamson County; Pennell v. City of

San Jose, 108 S. Ct. 849 (1988) (majority and dissenting

opinions). Such an evaluation cannot be made until petitioner

makes an application and the County acts on it.

B. THE FACIAL ATTACK WAS UNSUP-

PORTED BY EVIDENCE OF DEPRIVA-

TION OF ECONOMICALLY VIABLE

USE OR OF REASONABLE INVEST-

MENT-BACKED EXPECTATIONS.

Petitioner, again erroneously, argues that two important

questions arise out of the decision on its facial attack: failure

to take account of its reasonable investment-backed prfit

expectations, and failure to place the burden of preving

economically viable use on the County.

1. Reasonable Investment-Backed

Expectations.

Petitioner’s assertion (pp. 7-15) that there is confusion over

the interpretation of “reasonable investment-backed expecta-

tions”!* is simply incorrect. Further, both courts below were

unquestionably correct in holding that the County had not

unconstitutionally interfered with any such expectations.

Petitioner’s discussion of “investment-backed expecta-

tions” reveals a fundamental misunderstanding of the concept.

14 In Penn Central, this Court stated that one factor to consider in

analyzing whether a regulation has effected a taking is “the extent to which

the regulation has interfered with distinct investment-backed expectations.”

438 U.S. at 124.

iain ail

Petitioner incorporates the issue into the analysis whether a

regulation deprives the property owner of all economically

viable use of its property. It is apparent from Connolly v.

Pension Benefit Guaranty Corp., 475 U.S. 211 (i986), and

Penn Central, however, that the concepts of “economically

viable use” and “reasonable investment-backed expectations”

are distinct inquiries. !

As Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984),

pointed out, the Taking Clause protects property rights. In

defining those rights, the Court applies the “basic axiom that

‘““(pjroperty interests are not created by the Constitution.

Rather, they are created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law.”’” Ruckelshaus, 467 U.S. at 1001

(quoting Webb’s Fabulous Pharmacies v. Beckwith, 449 U.S.

155, 161 (1980), and Board of Regents of State Colleges v

Roth, 408 U.S. 564, 577 (1972)).

Ruckelshaus holds that there can be no reasonable expecta-

tion in the continuing existence of a police power regulation

absent an “express promise” from the government. 467 U.S.

at 1798.'© Where the government has made no such promise,

As this Court stated in Connolly, in analyzing a regulatory taking

claim, “we have identified three factors which have ‘particular

significance:’ (1) ‘the economic impact of the regulation on the claimant’;

(2) ‘the extent to which the regulation has interfered with distinct

investment-backed expectations’; and (3) ‘the character of the

governmental action."” Connolly, 106 S. Ct. at 1026 (quoting Penn

Central, 438 U.S. at 124 (emphasis added)).

In attempting to assert such rights, the property owners in Penn

Central and Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S

__, 107 S. Ct. 1232, 1247 (1987), attempted unsuccessfully to argue that

they had particular property rights that had been interfered with despite the

fact that their overall properties were admittedly profitable. A similar

claim was unsuccessfully attempted .n Williamson County; the property

owner asserted that, in addition to his claim that he had been deprived of all

economically viable use, he had acquired a vested right to his particular

development plan that protected him from any impairment of his “vested

right” or “expectation interest.” 105 S. Ct. at 3119-20 n.12.

the plaintiff merely has a “unilateral expectation” of fulfilling

its goals that is not constitutionally protected. Ruckelshaus,

467 U.S. at 1006-07; Webb’s, 449 U.S. at 161.

Penn Central ruled, in the zoning context, that property

owners have no constitutionally protectable interest in the

most beneficial use of their land. 438 U.S. at 125. The Court

rejected as “quite simply untenable” the contention that

property owners “may establish a ‘taking’ simply by showing

that they have been denied the ability to exploit a property

interest that they heretofore had believed was available for

development.” 438 U.S. at 130. That is precisely what

petitioner sought to do here.!’

Neither state nor federal law creates a property right in

existing zoning. It is black-letter law in California (and most

if not all other states, for that matter) that a property owner

has no vested right in the zoning on its property. Avco

Community Developers, Inc. v. South Coast Regional Comm’ n,

17 Cal. 3d 785, 796, 553 P.2d 546, 132 Cal. Rptr. 386 (1976),

appeal dismissed, 429 U.S. 1083 (1977); HFH, Ltd. v. Supe-

rior Court, 15 Cal. 3d 508, 521, 542 P.2d 237, 125 Cal. Rptr.

365 (1975), cert. denied, 425 U.S. 904 (1976).'® A property

owner can, however, obtain a vested property right that

protects it from subsequent changes in zoning by obtaining a

building permit and beginning substantial work or financial

commitments under that permit. Avco Community Developers,

Inc., 17 Cal. 3d at 791.

17 This Court's rulings make it clear that to have a constitutionally

protectable interest in a particular development project —— over and above

the constitutional protection against deprivation of all economically viable

use —— requires a state or federal statute or regulation creating an express

promise against impairment of that project.

Indeed, in California a general pian could be amended up to three

(now four) times a year, Cal. Gov't Code § 65361 (now § 65358). See

Furey v. City of Sacramento, 592 F. Supp. 463, 470 (E.D. Cal. 1984), aff'd,

780 F.2d 1448 (9th Cir. 1986) .

-! 2

Lower courts have not, as petitioner suggests, had diffi-

culty in interpreting this Court’s standards. In zoning and

similar permit cases, they have without exception ruled that

because government makes no “binding legislative commit-

ment” to maintain the present zoning, a property owner has no

reasonable expectation, investment-backed or otherwise, that

the zoning will not be changed.!? Where, on the other hand,

the property owner has obtained a vested right under state or

federal law, that property interest is protected by the Taking

Clause.?°

The correctness of the Ruckelshaus rule is evident when

applied to this case. Petitioner’s investors bought the property

19 Dean Tarry Corp. v. Friedlander, 826 F.2d 210 (2d Cir. 1987)

(Planning Board’s wide discretion under zoning ordinance prevented

developer's expectation of success for development plan from rising to the

level of a property right meriting Taking Clause protection); Yale Auto

Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985) (no entitlement to

certificate of location); Pace Resources, Inc. v. Shrewsbury Township, 808

F.2d 1023 (3d Cir. 1987), cert. denied, 107 S. Ct. 2482 (1987) (no

reasonable investment-backed expectation in zoning); MacL ‘od v. County

of Santa Clara, 749 F.2d 541, 548 (9th Cir. 1984), cert. denied, 472 US.

1009 (1985) (applicant must have been aware standards and conditions

governing issuance might cause application to be denied, and had no

assurance that permit would issue; taking cannot be premised on denial of

opportunity to exploit particular project he had come to believe would be

available for development); Deltona Corp. v. United States, 657 F.2d 1184,

1193 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982); (developer must

have been aware that standards and conditions governing issuance of

permits could change; it therefore had no assurance that permits would

issue); Furey, 592 F.Supp. at 470; Graham v. Estuary Properties, Inc., 399

So. 2d 1374 (Fla. 1981) (developer had no statutory right to fill swamp land

for construction; it had only its own subjective expectation that the land

could be developed in the manner it proposed).

20 Nemmers v. City of Dubuque, 716 F.2d 1194 (8th Cir. 1983) (under

taking clause of Iowa Constitution, plaintiff had acquired vested right by

work performed and commitments made pursuant to building permit);

Wheeler v. City of Pleasant Grove, 664 F.2d 99 (Sth Cir. 1981), cert.

denied, 456 U.S. 973 (1982) (building permit gave property owner an

interest protected by Taking Clause); Avco Community Developers, Inc., 17

Cal. 3d 785.

_ A ott a

over 15 years before the zone change to which they objected.

They have held the property vacant ever since, putting it to

use only as grazing land. They could have protected them-

selves as to their purported expectations at any time by

processing a development plan, but they did not do so. The

ruling for which petitioner contends would allow a speculator

to purchase property and hold it undeveloped in perpetuity,

while tying the hands of government to rezone the property

without paying compensation. Constitutional “justice and

faimess” do not require the public to bear the cost of

petitioner’s business gamble of delaying development for so

long.

2. Economically Viable Use.

Petitioner faced an “uphill battle in making a facial attack

on the [zoning restriction] as a taking.” Keystone Bituminous

Coal Ass'n v. DeBenedictis, 480 U.S. __, 107 S. Ct. 1232,

1247 (1987); slip op. at B-11. The hill was particularly steep

in this instance because, as the Ninth Circuit recognized, the

1980 LUE/LUO did not restrict petitioner’s property to only

one or two uses. The Rural Lands category provided for

numerous groups of special uses (see Appendix A), which

could be used alone or in combination.

Petitioner chafes under the burden of proof that has been

placed on it, but the burden of proving deprivation of eco-

nomically viable use clearly rests there under Penn Central,

Agins, and Keystone. That burden of proof does not change

just because the matter is decided on summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Petitioner also requests this Court to issue guidance as to

precisely what factors must be considered in every case to

determine economic viability. That request flies in the face of

Penn Central's rule of ad hoc analysis, 438 U.S. at 124, and is

particularly inappropriate in this case, because regardless of

the precise standard to be applied, petitioner did not and could

not conceivably meet its burden.7!

Agins and Penn Central laid down the principle that if a

zoning regulation is a valid exercise of the police power, there

is no taking if any “economically viable use” of the property

remains. Agins, 447 U.S. at 260; Penn Central, 438 U.S. at

124.

As Penn Central stated, the decisions “uniformly reject the

proposition that diminution in property value, standing alone,

can establish a ‘taking,’ see Euclid v. Ambler Realty Co., 272

U.S. 365 (1926) (75% diminution in value caused by zoning

law); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (87-1/2%

diminution in value).” 104 U.S. at 131 (emphasis added).

Agins and Keystone Bituminous Coal reaffirmed that prin-

ciple.

Rather than focusing on diminution in value, Penn Central

mandates that land use legislation must be analyzed by

“focusing on the uses the regulations permit.” 104 U.S. at

131. See American Savings & Loan Ass'n v. County of Marin,

653 F.2d 364, 368 (9th Cir. 1981) (mo taking occurs if “a

reasonabie use of the property remains’”’).

The courts of appeal that have addressed the issue have

applied a consistent analytical framework in determining

21 Contrary to petitioner's allegations, the County did present evidence

of economic viability. It presented the 1980 LUE/LUO, which show on

their face the availability of numerous groups of uses which are ordinarily

economically viable uses (see Appendix A) and the waiver, variance and

statutory procedures discussed herein (Appendices B and C); it presented

declarations as to the availability of waivers and variances (see CR 124,

Ex. J); and it presented petitioner’s admissions as to the market value of its

property before and after rezoning, as to return on investment, and as to the

economic viability of use of the property as a dude ranch (CR 1; CR 124,

Exs. G, U, V, W).

22 The Court gave further guidance in Keystone that the economic

viability analysis requires a comparison between “the value that has been

taken with the value that remains.” It stated that this comparison “is by no

means conclusive.” The “important role” is that of the nature of the state

action. Keystone, 107 S. Ct. at 1245, 1248.

whether economically viable use of property remains. They

have uniformly held that immediate profitability (i.e., whether

current income covers current expenses of a permitted use) is

not the only measure of economic viability. Indeed, it may be

the wrong measure when the owner has historically held the

property for long-term investment purposes. The courts have

further held that remaining market value (excluding specula-

tive uses) should also be considered, because even if the

property is not profitable in its present use, others may be

willing to purchase the property for other permissible uses.7?

(The use of different factors in different cases is entirely

appropriate, inasmuch as the economic analysis in each case

differs.) Using any of these factors, petitioner’s claim fails:

(1) Historic use. The 1980 LUE/LUO permit the con-

tinuation of the historic uses to which petitioners have put the

property since 1964 — holding the property for long-term

investment with interim use for grazing purposes.

23 See Florida Rock Industries, Inc. v. United States, 791 F.2d 893 (Fed.

Cir. 1986), cert. denied, 107 S. Ct. 926 (1987) (court should consider not

only immediately viable uses, but also market value —— what know-

ledgeable long-term investors would pay for the property); Park Avenue

Tower Associates v. City of New York, 746 F.2d 135, 139 (2d Cir. 1984),

cert. denied, 470 U.S. 1087 (1985) (crucial inquiry is not whether zoning

ordinance lets plaintiffs use the property in immediately profitable manner,

but whether uses allowed are sufficiently desirable that others might be

interested in purchasing for those uses); Pompa Construction Corp. v. City

of Saratoga Springs, 706 F.2d 412% (2d Cir. 1983) (same; while a particular

permitted use would not provide a profitable return, the issue is whether

someone would be interested in purchasing the property for such a

purpose); MacLeod v. County of Santa Clara, 749 F.2d at 541 (where the

present and primary uses of the property are holding for long-term

investment with interim use for grazing, inquiry should not be into

immediate profitability but into whether the challenged regulation permits

continuance of those present and primary uses).

24 Petitioner admitted (CR 127, p. 21) that the standard for economic

viability is met if the property can be held for investment for profit on sale.

By its own definition, that standard was met. Similarly, MacLeod v.

County of Santa Clara, 749 F.2d at 541, held that holding property for

investment is a recognized use of property.

«2s

(2) Market value remaining. Petitioner admitted that the

market value of the South Shore Property immediately follow-

ing the impact of the regulation was $992,500, which had

increased by March 1984 to $1,740,800.> In addition, if the

North Shore Property, which has more intensive development

rights, is taken into account, the per-acre value is even higher.

(3) Return on investment. Petitioner’s own figures (the

1975 investment value of $521,000, plus income received, less

taxes and operating expenses), show that it had a return on its

investment on the South Shore Property alone of $461,035

after the effects of the 1980 LUE/LUO. The Ranch Company

nearly doubled its money.*® In addition, it obtained $500,000

in capital through refinancing the property in 1983. The

market value of the South Shore Property steadily increased

under the Rural Lands classification to $1,740,800 in March

1984 — over three times the 1975 investment value. (Again,

the return on investment is further increased if the income and

income potential of the North Shore Property are taken into

account.)

25 As petitioner noted in its brief on appeal, “the value of land is

determined by its use” (Br. at 22). Therefore, the market value reflects

prudent investors’ views of the value of the uses of the property.

Petitioner’s appraiser excluded speculative sales from his appraisal (CR

124, Ex. V).

While this market value is less than that petitioner claimed it would

have enjoyed under the “Recreation” category ($1,600,000), petitioner

suffered no loss in investment value. As to any reduction in anticipated

profits, Andrus v. Allard, 444 U.S. 51, 66 (1979), has stated that “the

interest in anticipated gains has traditionally been viewed as less

compelling than other property-related interests.”

26 For the first time on appeal, petitioner suggested that return may have

been reduced by inflation. Judicial notice of general inflation rates is

improper, especially where not raised below, in the absence of evidence

that general inflation rates are applicable to this property. See San Luis

Obispo Properties, Inc. v. Pacific Gas & Elec. Co., 28 Cal. App. 3d 556,

564, 104 Cal. Rptr. 733 (1972). Even if inflation is taken into account as

petitioner wanted to do, it still had a 41% increase on the value of its

investment. See Statistical Abstract of the United States, p. 468.

fan Nat R s

OR ita ea ate ee cals BaP RA NY be

PEER DBE NE SA Ln eh WAAL SP eB

Y mente - Be.

(4) Immediate profitability. Petitioner failed to submit

evidence that no use or combination of uses permitted under

Rural Lands could be developed in an immediately profitable

manner. Some of the numerous groups of uses allowable on

the South Shore Property (all of which are usually beneficial

uses of land) include, but are not limited to:

1. Single Family Dwellings (2 for each of the 9

parcels);

2. Rural Sports and Group Facilities (including

hunting and fishing clubs, dude ranches, health

resorts, recreational camps, group camps, and

equestrian facilities including riding academies);

3. Crop Production and Grazing;

4. Livestock and Nursery Specialties;

5. Mobile Home Dwellings.?’

In opposition to the summary judgment motion, petitioner

submitted sketchy expert declarations purporting to contest the

economic viability of certain uses. Contrary to petitioner’s

assertion, however, that evidence completely failed to cover

all the uses and combinations of uses available under Rural

Lands.

Bein courts below correctly recognized that petitioner had

failed to submit any evidence showing that a dude ranch in

27 Contrary to the petitioner’s assertion (Petition, p. 8), the County

Planning Department memorandum did not state that only these five groups

were economically viable. If the memorandum is considered at all (it is

and has been objected to as a privileged memorandum produced with

plaintiff's express agreement that privilege was not waived, see CR 136,

p. 2), it addresses only certain uses of the property “that could provide the

highest possible economic return for the least improvement costs” as

principal uses of the property. It expressly does not address the economic

viability of other uses as principal uses, or of these uses in combination

with other uses.

combination with other uses (other than a working ranch)?®

would not be economically viable.

Further, petitioner’s evidence failed to consider whether a

dude ranch of a different size than the two chosen would have

been profitable, whether profitability could be achieved by

increasing winter utilization with organizational use of the

facility (such as corporate retreats), whether a dude ranch on a

portion of the property could be combined with single-family

residences or other uses on other parcels to increase

economies of scale, or whether waivers of dude ranch stand-

ards were available under LUO § 22.08.012. It also failed to

present evidence on health resorts (other than hot-spring spas)

(CR 134 at 29).

Also, petitioner’s evidence completely failed to address the

potential for combining uses on the property, for utilizing each

of its nine legal parcels for different uses, or for utilizing the

waivers and variances, discussed above, contained in LUO

§§ 22.08.012 or 22.01.044 or Real Property Division Or-

dinance §§ 21.48.017 or 21.48.0900. Moreover, petitioner

failed to consider an agricultural preserve designation under

Gov’t Code § 51200, et seg., which could dramatically lower

the taxes on the property. Any or all of these actions could

. profoundly change the economic analysis in this case. Finally,

it presented no evidence on the economic viability of the

intensive uses permitted on the North Shore Property.

In summary, the courts below both correctly determined the

1980 LUE/LUO are constitutional on their face as a matter of

28 In addition, petitioner submitted no admissible evidence as to the lack

of economic viability of a dude ranch standing alone or in combination

with a working ranch. The district court properly excluded petitioner’s

unsworn and late-filed reports on that subject, which had contradicted

petitioner’s earlier admissions that a dude ranch could (and would) be an

economically viable use of the property (CR 1, para. 25; CR 124, Ex. V., p.

112, Ex. W, I-20, 21). The district court recognized, however, that even if

these reports were considered, petitioner had still not submitted any

| evidence on the economic viability of a dude ranch in combination with

other uses (See Appendix D to Pet‘tion, pp. 7-8).

A a ae eee ee ene

Bb US att can a ln Sia a ai tp

~~ 2

law. The LUE/LUO did not alter the existing use of the

property; they permit numerous other uses; and they have

permitted a substantial return on investment. The LUE/LUO

did not remove any of the “essential sticks in the bundle of

property rights” such as the right to exclude others from the

property or to sell it at will. Petitioner, along with all others

in the County, will benefit from preservation of the natural

beauty of Lake Nacimiento and from the provision of adequate

public facilities. Petitioner, like the plaintiff in Agins, 447

U.S. at 262, is “free to pursue [its] reasonable investment

expectations by submitting a development plan” to the

County.

CONCLUSION

For the foregoing reasons, the petition for certiorari should

be denied.

Dated: July 22, 1988

Respectfully submitted,

THOMAS F. WINFIELD, III

Counsel of Record

VICKI E. LAND

BROWN, WINFIELD & CANZONERI, INC.

Attorneys for Respondent

County of San Luis Obispo

APPENDIX A

shi te

EXCERPTS FROM COUNTY OF SAN LUIS OBISPO

1980 GENERAL PLAN

LAND USE ELEMENT (“LUE”)

TABLE O

ALLOWABLE USES

RURAL LANDS CATEGORY

USE GROUP

1 AGRICULTURE

Ag Accessory Structures S-3

* Ag Processing S-3

Animal Husbandry Services A

Crop Production & Grazing A

* Farm Equipment & Supplies S-3

Livestock Specialties - Intensive S-3

Livestock Specialties - Minor S-3

Nursery Specialties S-3

2 COMMUNICATIONS

Transmission & Receiving Facilities A

3 CULTURAL, EDUCATION & RECREATION

Churches S-4

Off-Road Vehicle Courses S-1

Rural Sports & Group Facilities S-4

Schools - Pre thru Secondary S-4

Temporary Events S-17

* Uses not allowed by special standards for south

shore in Nacimiento Area Plan LUE.

-A 2-

4 * MANUFACTURING & PROCESSING

Collection Stations S-5

Concrete, Gypsum & Plaster Products S-15

Food & Kindred Products S-5

Paving Matenals S-15

Power Generating Plants S-1

Recycling & Scrap S-5

Small Scale Manufacturing S-5

Stone & Cut Stone Products S-15

Structural Clay, Pottery-Related Products S-15

5 RESIDENTIAL USES

Caretaker Residence S-16

Domestic Animal Raising A

Farm Labor Quarters -16

Home Occupations S-16

Mobile Home Dwellings S-8

Organizational Houses S-8

Residential Accessory Uses S-16

* Residential Care S-6

Single Family Dwellings A

Temporary Dwellings S-17

6 RESOURCE EXTRACTION

Fisheries and Game Preserves A

Forestry A

Mining S-9

Petroleum Extraction S-9

Set aD Bow’

te oe ee Nome 6s Rime ak

«h 3

7 RETAIL TRADE

Outdoor Retail Sales

Roadside Stands

8 SERVICES

* Correctional Institutions

Offices, Temporary

Public Safety Facilities

Storage, Accessory

Temporary Construction Yards

Waste Disposal Sites

9 TRANSIENT LODGINGS

Bed and Breakfast Facilities

10 TRANSPORTATION

Airfields & Landing Strips

Pipelines & Power Transmission

Public Utility Centers

11 WHOLESALE TRADE

Warehousing

Wholesaling & Distribution

S-7

a ea

Use Status

“S” Number

KEY TO TABLE O

Definition

Allowed use, unless otherwise limited by a

specific planning area standard. Land Use

Ordinance Chapter 22.03 (“Required Level

of Processing”) determines the permit

necessary to establish an “A” use, and

Chapters 22.04 through 22.06 determine the

site design, site development, and opera-

tional standards that affect the use. See also

the “Planning Area Standards” sections of

the Land Use Element area plans to find any

standards that may apply to a project in a

particular community or area.

Special use, allowable subject to special

Standards anaggr processing requirements,

unless otherwise limited by a specific

planning area standard. The following list

shows where in the Land Use Ordinance to

find the special standards that apply to

particular uses.

Applicable Land Use Ordinance Section

and/or Land Use Element Requirement

22.08.120 b Miscellaneous Uses

22.08.040 Agricultural Uses

22.08.060 Cultural, Educational &

Recreation Uses

22.08.140 Outdoor Commercial Uses

22.08.170 Resource Extraction

22.08.260 Transient Lodgings

ee. TO

13 22.08.280 Transportation, Utilities &

Communication

16 22.08.020 Accessory Uses

17 22.08.2490 Temporary Uses

19 22.08.300 Wholesale Trade

D. LAND USE DEFINITIONS

This section contains definitions of the land uses that can be

established under the Land Use Element. The uses defined here

are allowed in the various land use categories as determined by

the preceding charts. The definitions are intended only to list

the various land uses included under each general heading, and

do not explain what permit requirements or performance

standards may be applicable to a given use. Standards and

review procedures for establishing land uses are contained in

the Land Use Ordinance.

The following definitions are correlated wherever possible with

the use definitions of the Standard Industrial Classification

Manual (SIC), published by the Executive Office of the Presi-

dent, Office of Management and Budget (1972). The SIC is

referenced wherever appropriate.

Agricultural Accessory Structure

An uninhabited structure or building designed and built to store

farm animals, implements, supplies or products (not including

commercial greenhouses which are included under “Nursery

Specialties,” or buildings for agricultural processing activities)

that contains no residential use and is not open to the public.

Includes barns, grain elevators, silos, windmills, wind genera-

tors and other similar buildings and structures. (Amended

1981, Ord. 2089)

* Ag Processing

Establishments performing a variety of operations on crops

after harvest, to prepare them for market on-site or further

processing and packaging at a distance from the agricultural

area including; alfalfa cubing; hay baling and cubing; corn

shelling; drying of com, rice, hay, fruits and vegetables;

pre-cooling and packaging of fresh or farm-dried fruits and

vegetables; grain cleaning and custom grinding; custom grist

mills; custom milling of flour, feed and grain; sorting, grading

and packing of fruits and vegetables; tree nut hulling and

shelling; cotton gining; wineries and alcohol fuel production.

Note: any of the above activities performed in the field with

mobile equipment not involving permanent buildings are

included under “Crop Production and Grazing.” (SIC: 0723,

0724) (Amended 1981, Ord. 2063)

Airfields and Landing Strips

Transportation uses including any area of land or water used for

the landing and take-off of aircraft; also, any appurtenant areas

used for airport buildings and related facilities, including

aircraft sales. Also includes agricultural, personal, restricted

and public use landing strips, and heliports.

Animal Husbandry Services

Establishments primarily engaged in performing services for

animals, including veterinary services, animal hospitals, and

animal kennels (does not include feedlots, which are listed

under “Livestock Specialties”). (SIC: Groups 074, 075)

Bed and Breakfast Facilities

Residential structures with one family in permanent residence

where bedrooms without individual cooking facilities are rented

-A 7-

for overnight lodging, where at least one meal daily is provided.

Does not include “Hotels and Motels,” which are defined

separately; nor rooming and boarding houses which are in-

cluded under “Multi-Family Dwellings.” (Amended 1981, Ord.

2063)

Caretaker Residence

A permanent residence that is secondary or accessory to the

primary use of the property. A caretaker dwelling is used for

housing a caretaker employed on the site of any non-residential

use where a caretaker is needed for security purposes or to

provide 24 hour care or monitoring of people, plants, animals,

equipment, or other conditions on the site.

Churches

Religious organization facilities operated for worship or

promotion of religious activities, including churches and

religious Sunday-type schools. Other establishments main-

tained by religious organizations, such as full-time educational

institutions, hospitals and other potentially-related operations

(such as a recreational camp) are classified according to their

respective activities.

* Collection Stations

Facilities for temporary accumulation and storage of recyclable

discarded materials, which are subsequently transported to

recycling centers or solid waste disposal sites for further

processing. (Does not include automobile wrecking yards or

any recycling processing facilities, which are listed under

Recycling and Scrap; does not include temporary storage of

toxic or radioactive waste materials).

-A 8-

* Concrete, Gypsum, and Plaster Products

Manufacturing establishments producing concrete building

block, brick and all types of precast and prefab concrete

products. Also includes ready-mix concrete batch plants, lime

manufacturing, and the manufacture of gypsum products, such

as plasterboard. (SIC: Groups 326, 327)

* Correctional Institutions

Institutions for confinement and correction of offenders sen-

tenced by a court. Halfway houses and homes for delinquents,

or other facilities not under court order, are classified in “Social

and Service Organizations.” (SIC: Group 9223)

Crop Production and Grazing

Agricultural uses including production of grains, field crops,

vegetables, melons, fruits, tree nuts, flower fields and seed

production, ornamental crops, tree and sod farms, associated

crop preparation services and harvesting activities including but

not limited to mechanical soil preparation, irrigation system

construction, spraying and crop processing in the field not

involving a permanent structure. Also includes the raising or

feeding of beef cattle, horses, sheep and goats by grazing or

pasturing. Does not include feedlots, which are included under

“Livestock Specialties.” The distinction between feedlots and

grazing operations is established by the Land Use Ordinance,

Chapter 22.08.

Domestic Animal Raising

The keeping, feeding or grazing of animals as an avocation,

hobby or school project, subordinate to the principal residentia!

use Of a property. Includes species commonly considered as

farm animals as well as exotic species, but does not include

household pets. (See “Livestock Specialties.’’)

-4 9-

* Farm Equipment and Supplies

Establishments primarily engaged in sale or rental of agricul-

tural machinery and equipment for use in the preparation and

maintenance of the soil, the planting and harvesting of crops,

and other operations and processes pertaining to work on the

farm; also dairy and other livestock equipment. Includes

agricultural machinery (except tractors and other motorized,

self-propelled farm vehicles, which are included under “Auto,

Mobilehome and Vehicle Dealers and Supplies”), dairy farm

machinery and equipment, irrigation equipment, poultry

equipment and frost protection equipment; hay, grain and feed

sales; retail sales of prepackaged fertilizer and agricultural

sprays. Sales may include the final assembly of farm

machinery, implements or equipment from component parts

received from the manufacturer in a partially assembled state,

but not the creation of such components from raw materials.

(Amended 1981, Ord. 2075)

Farm Labor Quarters

Includes residences, rooming and boarding houses and mess

halls for farm workers employed on land owned by the owner

of the building site on which the quarters are located.

Fisheries and Game Preserves

Resource extraction operations engaged in commercial fishing

(including marine-related animals, mammals, etc.), and the

operation of fish hatcheries, fish and game preserves, and game

propagation. (SIC: Group 09)

* Food and Kindred Products

Manufacturing establishments producing or processing foods

and beverages for human consumption and certain related

products. Includes: (1) meat and poultry products (slaughter-

-A 10-

ing, canning, and curing and by-product processing); (2) dairy

products processing; (3) canned and preserved fruit and vegeta-

bles and related processing; (4) grain mill products and by-

products; (5) bakery products, sugar and confectory products;

(6) fats and oil products, including rendering plants;

(7) beverages and liquors (except wineries, which are included

under “Ag Processing”); (8) and miscellaneous food preparation

from raw products. (Operations on crops subsequent to their

harvest are included under “Ag Processing”). (SIC: Group 20)

Forestry

Establishments primarily engaged in operation of timber tracts,

tree farms, forest nurseries, and related activities such as

reforestation services; also the gathering of gums barks, sap,

moss and other forest products; also includes logging camps

and sawmills (except for mills producing finished lumber,

which are included under Lumber and Wood Products). (SIC:

Groups 08, 241)

Home Occupations

The gainful employment of the occupant of a dwelling, with

such employment activity being subordinate to the residential

use of the property, and there is no display, no stock in trade, or

commodity sold on the premises except as provided by the Land

Use Ordinance, and no persons employed other than residents

of the dwelling.

Livestock Specialties - Intensive

Agricultural establishments primarily engaged in commercial

livestock keeping or feeding as a principal land use that,

because of operational characteristics, may generate dust, odors

Or visual impacts that could adversely affect adjacent

properties. Such uses include hog ranches; dairies, dairy and

beef cattle feedlots; chicken, turkey and other poultry farms.

-A 11-

The distinction between a grazing operation and a feedlot is

established by the Land Use Ordinance, Chapter 22.08 (see also

“Domestic Animal Raising”). (SIC Groups 021 - 027)

Livestock Specialties - Minor

Includes commercial small-animal specialties operated as a

principal land use, such as: rabbit farms and other fur-bearing

animals; bee farms; avaries; worm farms, etc.

Mining

Resource extraction establishments primarily engaged in

mining, developing mines or exploring for metallic minerals

(ores), coal and non-metallic minerals (except fuels), or surface

mines extracting crushed and broken stone, dimension stone or

sand and gravel. (See also “Stone and Cut Stone Products”).

(SIC: Groups 10, 11, 12, 14)

Mobile Home Dwelling

A vehicle without self-propulsion, designed and equipped as a

dwelling unit with or without a permanent foundation, which is

wider than 8 feet or longer than 32 feet.

Nursery Specialties

Agricultural establishments primarily engaged in the production

of ornamental plants and other nursery products, grown under

cover or outdoors. Also includes establishments engaged in the

sale of such products (e.g. wholesale and retail nurseries) and

commercial scale greenhouses (home greenhouses are included

under “Residential Accessory Uses.”) (Amended 1981, Ord.

2089)

Offices, Temporary

A mobilehome, recreational vehicle or modular unit used as: a

temporary business or construction office during construction

of permanent facilities on the same site; a temporary on-site

real estate office for a development project; or a temporary

business office in advance of permanent facility construction

(Amended 1981, Ord. 2063)

Off-Road Vehicle Courses

Rural areas set aside for the use of off-road vehicle enthusiasts

including dirt bike, enduro, hill climbing or other off-road

motorcycle courses; also, rural areas for competitive events

utilizing four-wheel drive vehicles. Does not include sports

assembly facilities, or simple access roads which are useable by

only four-wheel drive vehicles.

Outdoor Retail Sales

Temporary retail trade establishments including: Farmer's

Markets; sidewalk sales; seasonal sales involving christmas

trees, fireworks, pumpkins or other seasonal items; semi-annual

sales of art or handcrafted items in conjunction with community

festivals or art shows; and retail sales or various products from

individual motor vehicles in temporary locations outside the

public right-of-way, not including bakery, ice cream and similar

vending vehicles that conduct all sales within the right-of-way

and do not stop in any location except on customer demand.

Does not include flea markets or swap meets, which are in-

cluded under “Storage Yards and Sales Lots.” (Amended 1981,

Ord. 2089)

Organizational Houses

Residential lodging houses operated by membership organiza-

tions for their constituents and not open to the general public.

———

-A 13-

Includes fraternity and sorority residential houses; monasteries

and religious residential retreats.

* Paving Materials

Manufacturing establishments producing various common

paving and roofing materials, including paving blocks made of

asphalt, creosoted wood and various compositions of asphalt

and tar. (SIC: Group 295)

Petroleum Extraction

Resource extraction establishments primarily engaged in:

producing crude petroleum and natural gas; recovering oil from

oil sands and shales; and producing natural gasoline and cycle

condensate. Activities include exploration, drilling, oil and gas

well operation and maintenance, operation of natural gas and

cycle plants, the mining and extraction of oil from oil sands and

shales, and on-site processing only to the extent necessary to

permit extraction (e.g. enhanced recovery techniques including

the use of steam generators), or to conform extracted crude to

pipeline requirements. (SIC: Group 13)

Pipelines and Power Transmission

Transportation establishments primarily engaged in the pipeline

transportation of crude petroleum; refined products of petro-

leum such as gasoline and fuel oils; natural gas; mixed, manu-

factured or liquified petroleum gas, or the pipeline transmission

of other commodities. Power transmission includes facilities

for the transmission of electrical energy for sale, including

transmission lines for a public utility company. Does not

include offices or service centers (classified in “Offices’’),

equipment and material storage yards (classified under “Storage

yards and Sales Lots”), distribution substations (classified

under “Public Utility Centers”), or powerplants (classified

-A 14-

under “Power Generating Plants”). (SIC: Groups 461, 491).

(Amended 1981, Ord. 2063)

* Power Generating Plants

Establishments engaged in the generation and distribution of

electrical energy for sale to consumers. Does not include

cogeneration facilities which are allowed incidental to any

approved commercial, industrial or agricultural use; or point-

of-use wind generators which are included under “Agricultural

Accessory Structures.” Transmission lines located off the site

of the power plant are included under “Pipelines and Power

Transmission.” Electrical substations are included under

“Public Utility Centers.” (SIC: Group 49)

Public Safety Facilities

Facilities operated by public agencies including fire stations,

other fire prevention and firefighting facilities, police and

sheriff substations and headquarters, including interim incar-

ceration facilities (not including jails which are defined under

“Correctional Institutions”).

Public Utility Centers

Fixed-base structures and facilities serving as junction points

for transferring utility services from one transmission voltage to

another or to local distribution and service voltages. These uses

include: electrical substations and Switching stations; telephone

switching facilities; natural gas regulating and distribution

facilities; public water system wells, treatment plants and

Storage; and community wastewater treatment plants, settling

ponds and disposal fields. These uses do not include office or

Service centers (classified in “Offices”), or equipment and

material storage yards (classified in “Storage Yards and Sales

Lots”’).

-A 15-

* Recycling and Scrap

Establishments primarily engaged in assembling, breaking up,

sorting, temporary storage and distribution of recyclable or

reusable scrap and waste materials, including auto wreckers

engaged in dismantling automobiles for scrap. Also includes

any storage of such materials in an area larger than 200 square

feet or higher than six (6) feet. Does not include terminal waste

disposal sites, which are separately defined. Does not include

temporary storage of toxic or radioactive waste materials.

Residential Accessory Uses

Includes any use that is customarily part of a residence and is

clearly incidental and secondary to a residence and does not

change the character of the residential use. Residential acces-

sory uses irclude the storage of vehicles and other personal

property, and accessory structures including swimming pools,

workshops, studios, greenhouses, garages, and guesthouses

(without cooking or kitchen facilities).

* Residential Care

Establishments primarily engaged in the provision of residential

social and personal care for children, the aged, and special

categories of persons with some limits on ability for self-care,

but where medical care is not a major element. Includes:

children’s homes; halfway houses; orphanages; rehabilitation

centers; self-help group homes. (SIC: Group 836)

Roadside Stands

Open structures for the retail sale of agricultural products

(except hay, grain and feed sales--included under Farm Equip-

ment and Supplies), located on the site or in the area of the

property where the products being sold were grown.

-A 16-

Rural Sports and Group Facilities

Facilities for special group activities such as: outdoor archery,

pistol, rifle, and skeet clubs and facilities (indoor shooting

facilities are included under the definition of “Amusements and

Recreational Services’); dude ranches; health resorts including

outdoor hot spring, spa or hot tub facilities; hunting and fishing

clubs; recreational camps (including incidental RV camping but

not KV parks); group or organized camps; incidental seasonal

camping areas without facilities; and equestrian facilities

including riding academies, schools, stables and exhibition

facilities. (Amended 1981, Ord. 2063)

Schools - Preschool to Secondary

Pre-school, day-care centers, elementary and secondary schools

serving grades 1 through 12, including denominational and

sectarian. Kindergartens and military academies are also

included. (SIC: Group 821)

Single-Family Dwelling

A detached building designed for and/or occupied exclusively

by one family. Also includes attached ownership units using

common wall development or airspace condominium owner-

ship, where a proposed site qualifies for planned development

through designation by planning area standard or through

compliance with any planned development or cluster division

standards of the Land Use Ordinance. (Amended 1981, Ord.

2063)

* Small Scale Manufacturing

Manufacturing establishments not classified in another major

manufacturing group, including: Jewelry, silverware and plated

ware, musical instruments; toys; sporting and athletic goods;

“hi 41-

pens, pencils, and other office and artists’ materials; buttons,

costume novelties, miscellaneous motions, brooms and brushes;

caskets and other miscellaneous manufacturing industries. Also

included are artisan and craftsman-type operations which are

not home occupations, and which are not secondary to on-site

retail sales. Also includes small-scale blacksmith and welding

services when accessory to another use. (SIC: Group 39)

(Amended 1981, Ord. 2063)

* Stone and Cut Stone Products

Manufacturing establishments primarily engaged in cutting,

shaping, and finishing marble, granite, slate, and other stone for

building and miscellaneous uses. Also includes establishments

primarily engaged in buying or selling partly finished monu-

ments and tombstones. (SIC: Group 328)

Storage, Accessory

The indoor or outdoor storage of various materials on the same

site aS a principal building or land use which is other than

storage, which supports the activities or conduct of the principle

use.

* Structural Clay and Pottery-Related Products

Manufacturing establishments primarily producing brick and

structural clay products, including pipe, china plumbing

fixtures, and vitreous china articles, fine earthenware and

porcelain electrical supplies and parts. Artist/craftsman uses

are included in “Small Scale Manufacturing” or “Home Oc-

cupations.” (SIC: Groups 325, 326)

-A 18-

Temporary Construction Yards

A storage yard for construction supplies, materials or equi-

pment, located on a site other than the construction site itself or

immediately adjacent to it, for use only during the actual

construction of a project.

Temporary Dwelling

Includes the temporary use of a mobilehome or recreational

vehicle as a dwelling unit, following the issuance of a building

permit :or a permanent residence while the permanent residence

is under construction.

Temporary Events

Any use of a structure or land for an event for a limited period

of time where the site is not to be permanently altered by

grading or construction of accessory facilities. Events include

but are not limited to art shows, rodeos, religious revivals, tent

camps, outdoor festivals and concerts.

Textile Mills

Manufacturing establishments engaged in performing any of the

following operations: Preparation of fiber and subsequent

manufacturing of yarn, threads, braids, twine cordage; manufac-

turing woven fabric and carpets and rugs from yam; dying and

finishing fiber, yarn, fabric, and knit apparel; coating,

waterproofing, or otherwise treating fabric; the integrated

manufacture of knit apparel and other finished products from

yarn; and the manufacture of felt goods, lace goods, non-woven

fabrics and miscellaneous textiles. (SIC: Group 22)

-A 19-

Transmission and Receiving Facilities

Public, commercial and private electromagnetic and photo-

electrical transmission, repeater and receiving stations for

radio, television, telegraph, telephone, data network and other

microwave applications; includes earth stations for satellite

communications. (See “Broadcasting Studios.”’)

Warehousing

Establishments primarily engaged in the storage of farm

products, furniture, household goods, or other commercial

goods of any nature for later distribution to wholesalers and

retailers. Does not include warehouse facilities where the

primary purpose of storage is for goods for wholesaling Dis-

tribution. Does not include terminal facilities for handling

freight (classified in “Vehicle and Freight Terminals”). Also

includes warehouse, storage or mini-storage facilities offered

for rent or lease to the general public.

Waste Disposal Sites

County-approved or operated refuse dumps, sanitary landfills

and other solid waste disposal facilities of a terminal nature,

where garbage, trash or other unwanted materials are aban-

doned, buried or otherwise discarded with no intention of

re-use. This definition does not include disposal sites for toxic

or radioactive waste materials.

Wholesaling and Distribution

Establishments engaged in selling merchandise to retailers; to

industrial, commercial, institutional, farm, or professional

business users; or to other wholesalers; or acting as agents or

brokers in buying merchandise for or selling merchandise to

such persons or companies. Includes such establishments as:

-A 20-

merchant wholesalers; agents, merchandise or commodity

brokers, and commission merchants; assemblers, buyers and

associations engaged in the cooperative marketing of farm

products. (SIC: Group 50, 511-516, 518, 519)

APPENDIX B

EXCERPTS FROM COUNTY OF SAN LUIS OBISPO

REAL PROPERTY DIVISION ORDINANCE AND

1980 LAND USE ORDINANCE (“LUQ”)

21.48.017 Lot line adjustments. (a) General. Lot line adjust-

ments between two or more adjacent parcels, where the land

taken from one parcel is added to an adjacent parcel and where

a greater number of parcels than originally existed is not

thereby created, shali be processed pursuant to this section.

(b) Application Contents. Lot line adjustment applica-

tions consisting of the following shali be submitted to the

planning department:

(1) Four copies of a completed application form as

required by the planning department;

(2) Two copies of a preliminary title report con-

ceming the property, not more than six months old, with an

updated title report required at the time of recordation of the

certificate of compliance;

(3) Seven copies of a lot line adjustment map

accurately drawn to scale. Measurements shall be identified by

feet, square feet or acres to the nearest tenth. The map shall

meet the following criteria:

(i) | The size and scale of the prints shall be

the same as those for tentative maps set forth in Section

21.48.035.

(ii) All exterior and interior lines shall be

shown on the map and shall be identified by course and bearing

description, based on survey data, calculated data, or informa-

tion of record. If a survey is done, any monuments established

must be shown on a record of survey filed in accordance with

the Land Surveyors Act, Business and Professions Code

Sections 8700, et seq.,

(iii) Proposed new lines and lines to be

eliminated shall be so identified in written notation or by

legend. Lines to be eliminated shall be dashed or otherwise

-B 2-

drawn so as to be clearly distinguishable from and subordinate

to remaining and new lines,

(iv) Areas of resulting parcels shall be

identified,

(v) All existing structures accurately located

on the onginal parcels together with their dimensions, the

distance between structures and the number of stories or height

of each structure,

(vi) The distance from the existing structures

to the boundary lines of the new parcel on which the structures

are located. Such distances shall be established by a registered

civil engineer or licensed land surveyor’s survey when deemed

necessary by the planning department,

(vii) The names, county road numbers and

widths of abutting streets,

(viii) The locations, purpose and width of all

existing and proposed easements, streets and appurtenant

utilities,

(ix) The approximate location of all water-

courses, drainage channels and existing drainage structures,

(x) Approximate high-water lines in lake,

Ocean or reservoir areas and areas subject to inundation,

(xi) A description of the property sufficient to

identify it to the assessor’s map,

(xii) North point and scale,

(xiii) Vicinity map,

(xiv) Location of wells and septic tanks.

shall not be approved or conditionally approved unless there is

compliance with criteria relative to general plan consistency,

parcel design, minimum lot area, environmental quality, and

public health and safety criteria as specified in this title and

other applicable county and state code provisions relating to

real property divisions. These criteria will be considered

satisfied if the resulting parcels maintain a position with respect

to said criteria which is equal to or better than such position

-B 3-

prior to approval or conditional approval of the lot line adjust-

ment.

(d) Action by Subdivision Review Board. The subdivi-

sion review board shall deny a lot line adjustment application if

the criteria in subsections (a), (b) and (c) of this section are not

met. If the criteria are met, the subdivision review board may

recommend approval to the board of supervisors. A denial by

the subdivision review board shall be final unless appealed to

the board of supervisors within ten days of the denial.

(e) Action by Board of Supervisors. A lot line adjust-

ment may be approved or conditionally approved only by the

board of supervisors.

(f) Final Processing. The final processing for a lot line

adjustment shall be the same as that for parcel maps specified

in Sections 21.48.165, 21.48.170, 21.48.175, 21.48.200,

21.48.210, 21.48.215, and 21.48.230. In addition, lot line

adjustment parcel maps shall be based on compiled record data

when sufficient information exists on filed maps to locate and

retrace the exterior boundary lines on the parcel map. The

determination as to whether sufficient information exists shall

be made by the county surveyor.

21.48.090 Adjustments. (a) In performing its respon-

sibilities pursuant to this title, the subdivision review board

may consider, and in cases where undue hardship wouid result

from the application of the regulations established in this

chapter, recommend conditional adjustments or exceptions from

these regulations.

(b) Requests for adjustments shall be submitted in

writing to the planning department prior to the regular meeting

of the subdivision review board at which the application of the

divider is to be considered. When the regulation from which

the applicant is seeking relief is prescribed in Title 22 of this

code, the applicant shall seek i.iief pursuant to that title.

specifications and drawings and/or required offers of dedication

-B 4-

should be requested by the applicant in writing at the time the

application is filed, in accordance with Section 21.48.045

(a)(3), and shall set forth facts to support the following criteria:

(1) That there are special circumstances or condi-

tions affecting the property;

(2) That the exception is necessary for the preserva-

tion and enjoyment of a substantial property right of the

applicant;

(3) That the granting of the exception will not be

detrimental to the public welfare or injurious to other property

in the vicinity in which the property is situated, and that it will

not:

(i) Be detrimental to the traffic circulation

system, the public utility and storm drainage systems,

(ii) Result in any increase in the county's

maintenance costs,

(iii) Be detrimental to, nor degrade, any

portion of the improvement work involved in the project.

(d) The subdivision review board shall not recommend

approval of an exception pursuant to subsection (c) of this

section unless it makes positive findings on all of the criteria

listed in that subsection.

(e) The subdivision review board shall not recommend

approval of any adjustment request pursuant to subsection (b)

unless it finds each of the following:

(1) Such adjustment is necessary for the preserva-

tion and enjoyment of substantial property rights of the ap-

plicant; and

(2) The granting of the adjustment will not have a

material adverse effect upon the health or safety of persons

residing or working in the neighborhood of the property; and

(3) The granting of such adjustment will not be

materially detrimental to the public welfare or injurious to

property or improvements in said neighborhood. (Ord. 2070

Section 7, 1981; Ord. 1986 Section 2(part), 1979).

_B 5-

22.01.044 - Variance: A variance from the strict applica-

tion of the terms of this Title or from planning area standards of

the Land Use Element that do not relate to parcel size, density

or limitations on use may be requested as follows:

(a) Application. A written application for variance is to

be filed with the Planning Department on the form provided,

accompanied by all graphic information required for Plot Plans

by Section 22.02.030b(1) through (7) (Plot Plan Content), and

any additional information necessary to explain the request.

Acceptance of the application is subject to Section 22.01.032a

(Consistency with the Land Use Element Required), and

22.02.022 (Determination of Completion).

(b) Notice and Hearing. Following acceptance of a

variance application and completion of a staff report, the

Planning Commission will conduct a public hearing on the

variance request. The notice and scheduling of the hearing is to

be pursuant to Section 22.02.036 (Public Hearing).

shall approve, approve subject to conditions, or disapprove a

variance as set forth in this subsection. Such decision may be

appealed to the Board of Supervisors as set forth in Section

22.01.0942 (Appeal).

(1) Findings. Approval or conditional approval

shall be granted only when the Planning Commission first

determines that the variance satisfies the criteria set forth in

Government Code Section 65906 by finding that:

(i) |The variance authorized does not consti-

tute a grant of special privileges inconsistent with the limita-

tions upon other properties in the vicinity and land use category

in which such property is situated; and

(ii) There are special circumstances applica-

ble to the property, including size, shape, topography, location,

or surroundings, and because of these circumstances, the strict

application of this Title would deprive the property of privi-

leges enjoyed by other property in the vicinity and in the same

land use category; and

-B 6-

(iii) The variance does not authorize a use that

is not otherwise authorized in the land use category; and

(iv) The granting of such application does not,

under the circumstances and conditions applied in the particular

case, adversely affect the health or safety of persons, is not

materially detrimental to the public welfare, nor injurious to

nearby property or improvements.

(2) Conditions of Approval. In approving an

application for variance, such conditions shall be adopted as are

deemed necessary to enable making the findings set forth in

Section 22.01.044c(1).

22.08.012 - Standards For Special Uses: Standards in this

chapter are related to the special characteristics of the uses

discussed and unless otherwise noted apply to developments in

addition to all other applicable standards of this Title, and all

applicable planning area standards of the Land Use Element.

approval, or when the applicant requests processing of another

application as a Development Plan, the standards of this

chapter, except those relating to residential density or limita-

tions on the duration of a use, may be waived or modified by

the Planning Commission based upon findings of facts that:

(1) Set forth the necessity for modification or

waiver of standards by identifying the specific conditions of the

site and/or vicinity which make standard unnecessary or

ineffective.

(2) Identify the specific standards of this chapter

being waived or modified.

(d) In no case, however, shall any standard of this

chapter be reduced through Development Plan approval pur-

suant to Subsection c beyond the minimum standards of the

other chapters of this Title, except through variance (Section

22.01.044).

S 4.

22.08.120 - Miscellaneous Special Uses (S-1 and S-2). A

use of land that is not listed elsewhere in this chapter, and is

designated by the Land Use Element as allowable pursuant to

this section, is subject to the following permit requirements in

addition to all applicable provisions of this Title:

(a) Uses Requiring Site Plan Review (S-2): Uses

designated by the Land Use Element as allowable pursuant to

this subsection (S-2 uses on Table O, PartI of the Land Use

Element), require Site Plan review in accordance with Section

22.02.032 (Site Plan).

(b) Uses Requiring Development Plan Review (S-1):

Uses designated by the Land Use Element as S-1 uses allowable

pursuant to this subsection require Development Plan review in

accordance with Section 22.02.034 (Development Plan).

APPENDIX C

at.

EXCERPTS FROM PERTINENT

CALIFORNIA STATUTES

IN EFFECT IN 1980 — 1981

GOVERNMENT CODE (West 1983):

§ 51240. Authority to limit use.

Any city or county may by contract limit the use of

agricultural land for the purpose of preserving such land

pursuant and subject to the conditions set forth in the contract

and in this chapter. A contract may provide for restrictions,

terms, and conditions, including payments and fees, more

restrictive than or in addition to those required by this chapter.

§ 51242. Land subject of contract.

No city or county may contract with respect to any land

pursuant to this chapter unless the land:

(a) Is devoted to agricultural use.

(b) Is located within an area designated by a city or

county as an agricultural preserve.

§ 51244. Term; renewal; notice.

Each contract shall be for an initial term of no less than

10 years. Each contract shall provide that on the anniversary

date of the contract or such other annual date as specified by

the contract a year shall be added automatically to the initial

term unless notice of nonrenewal is given as provided in

Section 51245.

fs.

§ 65302. Elements required to be included in plan.

The general plan shall consist of a statement of develop-

ment policies and shall include a diagram or diagrams and text

setting forth objectives, principles, standards, and plan

proposals ....

§ 65361. Amendments of mandatory elements; application.

(a) Except as provided in subdivision (b), no mandatory

element of a general plan shall be amended more frequently

than three times during any calendar year, which amendment

or amendments may occur at any time as determined by the

legislative body.

§ 69906. Variances from zoning ordinances.

Variances from the terms of the zoning ordinances shall

be granted only when, because of special circumstances

applicable to the property, including size, shape, topography,

location or surroundings, the strict application of the zoning

ordinance deprives such property of privileges enjoyed by

other property in the vicinity and under identical zoning

classification.

Any variance granted shall be subject to such conditions

as will assure that the adjustment thereby authorized shall not

constitute a grant of special privileges inconsistent with the

limitations upon other properties in the vicinity and zone in

which such property is situated.

A variance shall not be granted for a parcel of property

which authorizes a use or activity which is not otherwise

expressly authorized by the zone regulation governing the

parcel of property. The provisions of this section shall not

apply to conditional use permits.

ape. ARO

£4.

§ 66474. Findings justifying disapproval.

A legislative body of a city or county shall deny approval

of a tentative map, or a parcel map for which a tentative map

was not required, if it makes any of the following findings:

(a) That the proposed map is not consistent with

applicable general and specific plans as specified in Section

65451....

REVENUE AND TAXATION CODE (West 1987):

§ 423. Factors considered in valuation.

Except as provided in Section 423.7, when valuing

enforceably restricted open-space land, other than land used

for the production of timber for commercial purposes, the

county assessor shall not consider sales data on lands, whether

or not enforceably restricted, but shall value such lands by the

capitalization of income method in the following manner:

(a4) The annual income to be capitalized shall be

determined as follows:

(1) Where sufficient rental information is available

the income shall be the fair rent which can be imputed to the

land being valued based upon rent actually received for the

land by the owner and upon typical rentals received in the area

for similar land in similar use, where the owner pays the

property tax. Any cash rent or its equivalent considered in

determining the fair rent of the land shall be the amount for

which comparable lands have been rented, determined by

average rents paid to Owners as evidenced by typical land

leases in the area, giving recognition to the terms and

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conditions of the leases and the uses permitted within the

leases and within the enforceable restrictions imposed.

(2) Where sufficient rental information is not

available, the income shall be that which the land being valued

reasonably can be expected to yield under prudent manage-

ment and subject to applicable provisions under which the

land is enforceably restricted. There shall be a rebuttable

presumption that "prudent management" does not include use

of the land for a recreational use, as defined in subdivision (n)

of Section 51201 of the Government Code, unless the land is

actually devoted to such use.

(3) Notwithstanding any other provision herein, if

the parties to an instrument which enforceably restricts the

land stipulate therein an amount which constitutes the mini-

mum annual income per acre to be capitalized, then the

income to be capitalized shall not be less than the amount so

Stipulated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.