BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Gloria Negrete McLeod, Chair
BILL NO: AB 212 HEARING: 6/4/08
AUTHOR: Fuentes FISCAL: No
VERSION: 5/6/08 CONSULTANT: Detwiler
ZONING DECISIONS (URGENCY)
Background and Existing Law
Every city and county must adopt a general plan. More than
35 years ago, the Legislature said that counties and
general law cities' zoning ordinances must be consistent
with their general plans (AB 1301, McCarthy, 1971). As the
California Supreme Court explained in its 1990 Lesher
decision the "Planning and Zoning Law does not contemplate
that general plans will be amended to conform to zoning
ordinances. The tail does not wag the dog. The general
plan is the charter to which the ordinance must conform."
After local officials amend their general plans, state law
gives them "a reasonable time" to amend their zoning
ordinances to be consistent with their general plans.
Because most zoning is considered a "municipal affair,"
state law does not require charter cities' zoning
ordinances to be consistent with their general plans.
Thirty years ago, however, an exceptional bill required the
City of Los Angeles to make its zoning ordinance consistent
with its general plan (AB 283, Vincent Thomas, 1978). The
Legislature originally gave the City until January 1, 1981
to achieve zoning consistency, later extending the deadline
to January 1, 1982 (AB 1639, Hayes, 1979). The City sued
the State, but in 1982 the District Court of Appeal upheld
the zoning consistency statute.
A Los Angeles developer wants to build houses on a former
golf course. The community plan for the area (part of the
City's general plan) calls for residential use in a range
of densities: very low, low, and medium. In March 2007,
the local city councilmember proposed amending the plan to
delete the higher densities and instead designate the
property for open space or minimum residential uses. In
July 2007, the developer applied for a zoning ordinance
amendment that would be consistent with the community
plan's designations.
AB 212 -- 5/6/08 -- Page 2
Proposed Law
Assembly Bill 212 requires the City of Los Angeles to
consider an application to amend the zoning ordinance to
conform to the general plan based on the general plan as of
the application date. AB 212 applies when the general plan
designates the property for residential use and that
designation has applied to the property for at least 15
years.
Comments
1. The tail does not wag the dog . General plans land use
set policies; zoning decisions implement those policies.
For decades, state law has required that zoning must be
consistent with general plans. The Legislature
specifically said that the state's biggest charter city ---
Los Angeles --- must follow this established principle. As
the California Supreme Court explained, when zoning is
inconsistent with the general plan, the remedy is to amend
the zoning ordinance and not the general plan. Los Angeles
officials have had plenty of time to make their zoning
consistent with their community plans. The Los Angeles
situation shows how local officials can thwart development
projects by changing their long-standing general plan
policies. When builders play by the established rules,
they should expect local officials to treat them fairly.
AB 212 makes sure that the Los Angeles City Council stands
by its general plan when reviewing zoning changes.
2. Local policy, local discretion . Local voters elect
city councilmembers to make public policy in response to
changing needs. As a community's economy changes, local
officials need the flexibility to adapt their land use
policies to new realities. AB 212 interferes with the Los
Angeles City Council's discretion to alter local land use
policies in response to changing circumstances. While a
policy may have made sense when a city council adopted a
plan 15 or 20 years ago, those designations may be outmoded
today. A plan adopted in the late 20th Century may have
been premised on cheap gasoline, long commutes, and large
parcels while the land use policies of the early 21st
Century acknowledge high energy costs by encouraging
compact development and walkable neighborhoods. The
Legislature shouldn't lock Los Angeles into outdated
AB 212 -- 5/6/08 -- Page 3
thinking.
3. Colliding policies . AB 212 represents a collision of
competing public policies. On the one hand, the bill is
about simple fairness --- making sure that Los Angeles
officials use their long-standing general plan policies
when reviewing zoning changes. They've already had more
than what state law calls a "reasonable time" to make their
zoning consistent with the community plan. On the other
hand, the bill is yet another legislative intrusion into
local officials' home rule prerogatives. The Legislature
shouldn't become a super planning commission and intervene
in a specific land use spat. AB 212 poses tough choices
for the Committee.
4. Not anomalous . The situation facing the Verdugo Hills
Golf Course may be common in other parts of Los Angeles.
The City's 35 community plans collectively comprise the
general plan's land use element. These community plans
lack uniform standards, relying instead on highly detailed
qualifications on development. The City Planning
Department is gradually overhauling the community plans,
proposing clear policies in place of a myriad of
development qualifications. But until the Los Angeles City
Council adopts the new community plans and initiates the
necessary zoning amendments, property owners may find that
current zoning isn't consistent with community plans. For
example, the Verdugo Hills Golf Course falls within the
"Sunland-Tujunga-Lakeview Terrace-Shadow Hills-La Tuna
Canyon Community Plan," but it's not scheduled for revision
in the near future. In the meantime, AB 212 allows
property owners all over the City to apply for consistent
zoning.
5. Another alternative ? The Los Angeles Municipal Code
already offers property owners the chance to lock-in
existing general plan designations. An applicant can ask
for a "vesting zoning change" that gives an approved
development a vested right to proceed in compliance with
the rules that were "in force on the date the application
is deemed complete." To get a vesting zone change, the
builder must submit a detailed application: a site plan,
architectural renderings, and information about the
project's height, design, size, use, building locations,
driveways, landscaping, walls, fences, and any other
AB 212 -- 5/6/08 -- Page 4
information that the city planning director requests. In
other words, the City can grant a vested right if the
builder provides a highly detailed proposal. Although the
concept of a vesting zoning change is similar to AB 212,
the City's ordinance demands far more detail than the bill
requires.
6. Only in L.A . AB 212 is an urgency bill that applies to
a charter city of 2 million or more population; in other
words, just the City of Los Angeles. Because the courts
upheld the 1978 bill that singled-out Los Angeles as the
only charter city that must achieve zoning consistency,
it's likely that the courts would also uphold AB 212.
7. Legislative history . Until the July 2007 amendments,
AB 212 was one of the Assembly Budget Committee's spot
bills. Successive amendments made Assembly Member Fuentes
the bill's author and shaped the current contents.
Assembly Actions
Not relevant to the May 6, 2008 version of the bill.
Support and Opposition (5/29/08)
Support : MWH Development Corporation, California Building
Industry Association, California Home Builders, Catalina
Pacific Utilities, Spiegel Development Inc.
Opposition : City of Los Angeles, American Planning
Association-California Chapter, California State
Association of Counties, League of California Cities,
Regional Council of Rural Counties.