Countless volumes have been written about the legal basis for planning
and all the court decisions on the subject. This paper is too brief to go
into more than just the bare outline of some of planning's legal side. Commissioners
should rely upon the city attorney or county counsel for detailed legal
opinions. In addition, several books in the reference section of this publication
have good discussions of planning law.
Planning and the regulation of land use are based upon local government's
"police power." The courts have held that the police power may
be used to regulate a wide and expanding variety of activities as long as
it is exercised in a manner that is reasonably related to the protection
of the public's health, safety, and welfare, is not preempted by federal
or state law, and is within the framework of state statute. Community planning,
zoning laws, subdivision regulations, rent controls, sign controls, community
growth management regulations, and dedications of private land as a condition
of development approval are some examples of the police power at work. Constitutional
guarantees of equal protection, free speech, due process, and just compensation
for the taking of private property define the boundaries of the police power.
An illegal "taking" may occur as a result of either the public's
acquisition of private property without just compensation or of excessively
restrictive land use regulations that deprive a property owner of all uses
of his/her land.
Planning commission decisions must be based on a rational decision-making process. Often, the commission must adopt written "findings" explaining the factual reasons for its decision. A finding is a statement of fact relating the information that the commission has considered to the decision that it has made. If a decision is challenged in court, the findings will be used to trace the commission's reasoning and to determine whether its action was legally justified.
Findings must be supported by evidence in the hearing record (i.e., testimony,
reports, environmental documents, etc.) and should not contain unsupported
statements. Complete findings should be included in the commission's resolution
of approval or denial. Keep in mind that findings will not rescue a decision
if the commission has failed to follow the other procedures required by
law.
Zone change -- finding of consistency with the general plan and any specific plans.
Subdivision -- finding of consistency with the general plan and any specific plans; findings supporting approval/denial per state and local codes.
Specific plan adoption or amendment -- finding of consistency with the general plan.
Conditional use permit -- locally required findings (if any), findings supporting approval and conditions.
Variance -- specific findings required by state statute.
Design review approval -- locally required findings (if any), findings supporting approval and conditions.
General plan amendment limiting the number of newly constructed dwellings -- specific findings required by state statute.
Adoption of a local ordinance affecting regional housing needs -- specific findings required by state statute.
Approval of a housing project when density is lower than that which was allowed when application was accepted -- specific findings required by state statute.
Projects involving an EIR -- findings of overriding consideration, findings of significant effect.
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Next: A Short Primer on State Planning Law
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-445-0613