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Fourth District Court of Appeal Rejects Citizen Group Spot Zoning Challenge to Orange County Senior Housing Project

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by Rick McNeil and Colin Higgins

The Foothill Communities case involved a “spot zoning” challenge to a senior residential housing project to be developed by the Roman Catholic Diocese of Orange. In this case, the trial court granted Foothill’s petition for a writ of mandate based on the contention that the “spot zoning” was impermissible. The Fourth District reversed the judgment and announced that it was publishing its opinion in order to clarify the law related to spot zoning in two respects. First, the Court clarified that “spot zoning” — which involves the creation of an “island” within a larger area devoted to other uses — may involve either the situation in which more restrictive rights are imposed upon the smaller parcel or the situation in which the smaller parcel has been granted greater rights than the surrounding parcels. Second, the Court clarified that in order to determine whether the spot zoning is permissible or impermissible, a court must conduct a two-part analysis in which it determines not only whether spot zoning has occurred but also, if it has occurred, whether it is in the public interest.

Respecting the first issue, the Court acknowledged that while there are no reported decisions in California explicitly recognizing spot zoning where the smaller parcel is given greater — rather than lesser — rights (as was the case in Foothill Communities), earlier cases had acknowledged this possibility and, ultimately, the question is whether “a rational reason in the public benefit exists for such a classification.”

Respecting the second issue, the Court noted that “[t]he essence of spot zoning is irrational discrimination,” and further explained that “[t]he rezoning ordinance may be justified, however, if a substantial public need exists, and this is so even if the private owner of the tract will also benefit.” In Foothill Communities, the Court concluded that the significant public interest in furthering the development of affordable housing for seniors constituted such a substantial public need.

Lastly, the Court rejected a First Amendment challenge to the rezoning of the site. It was undisputed that the project planned to provide faith-based community services, however, the government’s action in approving the project did not violate the Establishment Clause because the primary purpose of the rezoning ordinance was not to further or to inhibit religion, but to further the goal of providing needed senior housing (a legitimate secular legislative purpose) and the rezoning did not foster an excessive government entanglement with religion.

Basic Facts:

The Roman Catholic Diocese of Orange and Kisco Senior Living proposed to develop a senior living community within an unincorporated portion of the County covered by the County’s general plan as well as the North Tustin Specific Plan. The County’s Board of Supervisors amended the specific plan to create a new zoning definition for “senior residential housing,” applied the new zone to the project site (which previously was zoned “residential single family), found the project to be consistent with both plans, and certified the EIR for the project as complete, accurate and in compliance with CEQA.

The plaintiff (an unincorporated association of grassroots community groups and nearby homeowners) challenged these actions through a petition for a peremptory writ of mandate that alleged, among other things, that the approval of the project constituted impermissible spot zoning. The petition was granted by the trial court.

Appellate Decision (Reversed):

Consistency With The General And Specific Plan

First, respecting the standard of review applicable to the zoning decisions, the Court of Appeal explained that “[t]he rezoning of property, even a single parcel, is generally considered to be a quasi-legislative act and that, for this reason, the Board of Supervisor’s decision was subject to review under ordinary mandamus (meaning the standard of review is “whether the action was arbitrary or capricious or totally lacking in evidentiary support”).

The Court further noted whether the decision was arbitrary and capricious or devoid of evidentiary support were questions of law as to which the party challenging the action would bear the burden of production of sufficient evidence to establish that the ordinance and approvals were unreasonable and, thus, invalid.

Citing Government Code Section 66473.5 (providing that a project must be “compatible with the objectives, policies, general land uses, and programs specific in” applicable general and specific plans), the Court of Appeal compared the attributes of the project to the general and specific plans, including the extent to which the project would further the state and local goal of the development of senior housing and the extent to which the project’s design elements (such as the project’s proposed building frontage, height, and setbacks, the residential style of the proposed bungalows, and the California Craftsman architectural design) would conform to the design elements of the neighborhood and the existing residential single family zoning designation. Based on this analysis, the Court concluded that “the Board’s findings of consistency with the general plan and the North Tustin Specific Plan are supported by substantial evidence [and] were not arbitrary or capricious ….”

Spot Zoning

In response to Foothill’s argument that approval of the project constituted impermissible “spot zoning,” the Court of Appeal first explained that “[s]pot zoning is one type of discriminatory zoning … where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an ‘island’ in the middle of a larger area devoted to other uses.”

The Court acknowledged that, while there are no published cases in California explicitly recognizing spot zoning where the smaller parcel is given greater (rather than lesser) rights, earlier cases have acknowledged this possibility and, ultimately, the question is whether – even if there is spot zoning – “a rational reason in the public benefit exists for such a classification.”

In this regard, the Court of Appeal cited Wilkins v. City of San Bernardino, 29 Cal. 2d 332 (1946) for the propositions that: (1) it is clearly within the discretion of the legislature to determine the zoning lines to be drawn and a court will not interfere with such decisions unless there is a “clear showing of abuse of legislative discretion”; and (2) the burden is on the plaintiff challenging a zoning ordinance to produce sufficient evidence to show an abuse of legislative discretion that has resulted in an “unreasonable and unwarranted exercise of the police power.” As noted above, the Court did not find that Foothill had met this burden in this case.

First Amendment

Foothill also asserted that the approval of the project violated the Establishment Clause of the United States and California Constitutions (prohibiting a state from making any law respecting an establishment of religion). In this case, it was undisputed that one of the goals of the project was to fulfill a “faith-based mission” by, among other things, providing onsite faith-based services to the community.

The Court of Appeal relied upon the three part test of Lemon v. Kurtzman, 403 U.S. 602 (1071) in analyzing whether the government‘s action in this case violated the Establishment Clause, which is as follows:

“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion [and third] the statute must not foster an excessive government entanglement with religion ….”

In this case, the Court easily rejected the constitutional claim by concluding that the main purpose of the enactment of the zoning amendment and the approval of the project was to provide senior housing. The Court further observed that “[a] zoning change or issuance of a special use permit does not create an entanglement between government and religion just because the landowner or operator is a religious organization.”

Foothill Communities Coalition v. County of Orange, 222 Cal.App.4th 1302, 166 Cal.Rptr.3d 627 (Cal. App. 4 Dist.) (January 13, 2014)

Trial Court Judge:
Gail Andrea Andler, Orange County Superior Court

Appellate Panel:
Fybel (Bedsworth and Moore, concurring)