Agenda - Planning Commission - 04/03/2014

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Zoning Bulletin March 10, 2014 I Volume 8 I Issue 5 decision by a County Board of Supervisors to create a new zoning district for senior residential housing in order to allow a landowner to construct a senior citizens living community constituted improper spot zoning. More specifi- cally, it addressed whether giving greater rights to a parcel than the surround- ing area can constitute spot zoning. It also addressed whether spot zoning is permissible if in the public interest. The Background/Facts: The Roman Catholic Diocese of Orange (the "Di- ocese") owned a 7.25-acre parcel of undeveloped property in the North Tustin area (an unincorporated area) of Orange County (the "County"). The property was covered by the North Tustin Specific Plan ("NTSP"), which regulated the development of properties within its boundaries. Under the NTSP, the prop-. erty was zoned residential single-family. In 2003, the Diocese sought to develop the property as a senior residential community (the "Project"). The Diocese retained senior living communities developer Kisco Senior Living ("Kisco") to design and implement the Project. In January 2009, the Diocese and Kisco submitted to the County a project design proposing 153 senior living units. Ultimately, the County Board of Supervisors (the "Board") created a new zoning district for senior residential housing and applied it to the Diocese's property. The Board also found that the Project was consistent with the County's general plan and with the NTSP. Foothills Communities Coalition ("Foothills"), an unincorporated associa- tion of grassroots community groups and area homeowners, challenged the Board's decision. They argued that the Board's acts constituted impermissible spot zoning. Foothills filed a petition for a peremptory writ of mandate. The trial court agreed with Foothill and entered judgment in their favor. It issued the requested writ. The County and the Diocese appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Court of Appeal, Fourth District, Division 3, California, agreed that the Board's decision to rezone the Diocese's property, subjecting that parcel to less restrictive zoning than the surrounding properties, constituted spot zoning. However, the court also concluded that the spot zoning was not impermis- sible, but rather was permissible because it was in the public interest. - The court explained that "spot zoning" is "one type of discriminatory zon- ing ordinance." Usually, said the court, "[s}pot zoning occurs where a small parcel is restricted and given lesser rights tha:u 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 further explained that usually spot zon- ing involves a small parcel of land, and the larger the property the more dif- ficult it is to sustain an allegation of spot zoning. Likewise, said the court, where the "spot" is not an island but is connected on some sides to a like zone the allegation of spot zoning is more difficult to establish since lines must be drawn at some point. Importantly, the court noted that "[e]ven where a small island is created in the midst of less restrictive zoning, the zoning may be up- held where rational reason in the public benefit exists for such a classification." ©2014 Thomson Reuters 7