Part Two
Local Land Use Preemptions
Note: All statutory references are to California Codes.
INDEX (alphabetical)
[1]
Agriculture
Air Pollution Control District Emission Controls
Airports
Annexations by Initiative
Archaeological Resources
Building Codes and Ordinances
Circulation
Coastal Zone Development Projects
Commercial Uses
Commercial Rent Control
Disasters
[2]
Educational Facilities
Energy Resources
Ferry Service
Flooding and Flood Control
Governmental Buildings and Uses
Hazardous Wastes and Toxics
Health Services
Homesteads Created by Probate Court
Hospitals
Horse Racing
[3]
Industrial Uses
Initiatives
Mining
Native American Land
Noise
Oil, Gas, Hydrocarbons and Mineral Extraction
Outdoor Advertising (Signs and
Billboards)
Pets in Public Rental Housing for the Elderly
Pollution
Psychiatric Care Facilities
Public Capital Facilities
Public Hearing, Meeting Broadcasting
and Telecasting
Public Utilities
[4]
Radio Communications
Railroads
Rapid Transit Districts
Rent Control
Residential
Satellite Communications Facilities
School Impact Fees
Social and Human Services
[5]
Solar Energy Systems
Solid Waste
Timber Harvesting
Water and Wastewater Facilities
Water Resources
Wildlife and Vegetation -- Endangered Species
Zoning Ordinances and Regulations in General
AGRICULTURE
Right-To-Farm Ordinances
Agricultural uses are now protected to some degree by state law from being
declared nuisances by owners of encroaching urban property. This affords
some measure of preemptive status to agricultural land use.
(a) No agricultural activity, operation, or facility, or appurtenances thereof,
conducted or maintained for commercial purposes, and in a manner consistent
with property and accepted customs and standards, as established and followed
by similar agricultural operations in the same locality, shall be or become
a nuisance, private or public, due to any changed condition in or about
the locality, after the same has been in operation for more than three years
if it was not a nuisance at the time it began.
(b) Subdivision (a) shall not apply if the agricultural activity, operation,
or facility, or appurtenances thereof obstructs the free passage or use,
in the customary manner, of any navigable lake, river, bay, stream, canal,
or basin, or any public park, square, street, or highway.
(c) This section shall not invalidate any provision contained in the Health
& Safety Code, Fish & Game Code, Food & Agricultural Code, or
Division 7 (commencing with Section 13000) of the Water Code, if the agricultural
activity, operation, or facility, or appurtenances thereof, constitute a
nuisance, public or private, as specifically defined or described in any
such provision.
(d) This section shall prevail over any contrary provision of any ordinance
or regulation of any political subdivision of the state.
(e) For purposes of this section, the term "agricultural activity,
operation, or facility, or appurtenances thereof" shall include, but
not be limited to, the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural commodity
including timber, viticulture, apiculture, or horticulture, the raising
of livestock, fur bearing animals, fish, or poultry, any any practices performed
by a farmer or on a farm as incident to or in conjunction with such farming
operations, including preparation for market, delivery to storage or to
market, or to carriers for transportation to market.
CIVIL CODE SECTION 3482.5
Return to Index
AIR POLLUTION CONTROL DISTRICT EMISSION
CONTROLS
Air pollution control districts have the authority to impose conditions
on the construction and operation of privately owned electricity generation
units. Such conditions are based upon the district's emission controls.
Because air pollution control districts are agencies of the state and operate
in an area of statewide concern, their regulations may be imposed upon any
state or local government agency. (Orange County Air Pollution Control
District v. Public Utilities Commission (1971) 4 Cal.3d 945)
Return to Index
AIRPORTS
Aircraft Noise
Some disagreement persists about federal government restrictions on how
local governments regulate aircraft noise through land use controls such
as airport siting and zoning. The Federal Aviation Act however, preempts
local regulations controlling noise at the airport itself, as well as limiting
arrival and departure times of jet aircraft flights. (City of Burbank
v. Lockheed Air Terminal (1973) 93 S.Ct 1854; 53 Ops.Cal.Atty.Gen. 75
(1970))
Heliports
The Pennsylvania Court of Appeals has held that federal aviation law does
not preempt a city's heliport regulation, and that an ordinance requiring
a private fire alarm system hookup to the municipal system to serve the
heliport is not arbitrary or unduly burdensome (Land Use Law, April,
1988, p. 28)
Private Airfields
Federal law does not preempt county zoning ordinances that restrict private
airfield land use. (Faux-Burhans v. County Commissioners (Dec. 17,
1987) U.S. District Court, 674 F. Supp. 1172)
Return to Index
ANNEXATIONS BY INITIATIVE REQUIRED BY CITY
CHARTER AMENDMENTS
The Cortese/Knox Local Government Reorganization Act of 1985 sets forth
procedures for annexations, incorporations, dissolutions, reorganizations,
and detachments involving cities, counties, special districts, and subsidiary
districts. Its predecessor, the Municipal Organization Act of 1977, was
the subject of litigation after a city annexed land and voters approved
an initiative to amend the city's charter to require voter approval of any
annexations. After the passage of the initiative, voters rejected the annexation
in a special election.
The newly de-annexed property owner successfully challenged the charter
amendment that required voter approval of annexations. The court held that
state law preempted the city's charter amendment. First, the court noted
earlier case law holding that annexations are a matter of statewide concern.
Second, the court noted that the Legislature, through MORGA, has exhibited
its intent to occupy the field to the exclusion of municipal regulation,
as the Legislature intended to limit the power of city governments and their
voters to veto a LAFCO approved annexation to avoid circumvention of its
goal to provide community services efficiently to newly developed areas.
The court therefore upheld the annexation and invalidated the city's charter
amendment. (Ferrini v. City of San Luis Obispo (1983) 150 Cal.App.3d
239)
Return to Index
ARCHAEOLOGICAL RESOURCES
Native American/Indian Burial or Ceremonial Sites and Shrines
No public agency, and no private party using or occupying public property,
or operating on public property, under a public license, permit, grant,
lease, or contract made on or after July 1, 1977, shall in any manner whatsoever
interfere with the free expression or exercise of Native American religion
as provided in the United States Constitution and the California Constitution;
nor shall any such agency or party cause severe or irreparable damage to
any Native American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property, except on
a clear and convincing showing that the public interest and necessity so
require. The provisions of this chapter shall be enforced by the commission,
pursuant to [Public Resources Code] Sections 5097.94 and 5097.97.
The provisions of this chapter shall not be construed to limit the requirements
of the Environmental Quality Act of 1970, Division 13 (commencing with Section
21000).
The public property of all cities, counties, and city and county located
within the limits of the city, county, and city and county, except for all
parklands in excess of 100 acres, shall be exempt from the provisions of
this chapter. Nothing in this section shall, however, nullify protections
for Indian cemeteries under other statutes.
PUBLIC RESOURCES CODE SECTION 5097.9
Return to Index
BUILDING CODES AND ORDINANCES
Cities and counties are mutually exempt from each other's building codes
and zoning ordinances, regardless whether they are acting in a governmental
or proprietary capacity. An Attorney General's analysis of Government Code
Section 53090 through 53095 forms the basis for this mutual exemption. (40
Ops.Cal.Atty.Gen. 243 (1962))
In addition, a private developer leasing county property is exempt from
a city's building and zoning ordinances if he/she uses the property for
the public purposes for which it was granted to the county. (57 Ops.Cal.Atty.Gen.
124 (1974))
Building Permits
The United States, the State of California, school or other districts, counties
and cities shall not be required to pay a fee for filing an application
for a building permit pursuant to this chapter.
HEALTH & SAFETY CODE SECTION 19132.9
Carports - Garage Size Requirements
Health & Safety Code Section 17922.9 exempts specified housing development
financed by the federal Farmers Home Administration (FmHA) from local regulations
governing the size and capacity of carports or garages.
Return to Index
CIRCULATION
Cruising
The State Vehicle Code preempts any local ordinance which prohibits a vehicle
from cruising a city's central business district. (Aguilar v. Municipal
Court (March 24, 1982) 130 Cal.App.3d 34)
Highway Abandonment
Streets & Highways Code Section 8315 prohibits the vacation (abandonment)
of a state highway except by the California Transportation Commission.
Return to Index
COASTAL ZONE DEVELOPMENT PROJECTS
Coastal Zone Development Permits in General
City and county general plans and zoning must be consistent with local coastal
programs as required by the California Coastal Act of 1976. The Coastal
Commission certifies local coastal programs.
With certain specified exceptions, counties and the state must obtain a
coastal development permit from a city in order to develop public property
located within the portion of the coastal zone under city jurisdiction-if
the city has a certified local coastal program. (65 Ops.Cal.Atty.Gen. 88
(1982))
All public agencies and all federal agencies, to the extent possible under
federal law or regulations or the United States Constitution, shall comply
with the provisions of this division.
PUBLIC RESOURCES CODE SECTION 30003
No provision of this division is a limitation on any of the following:
(a) Except as otherwise limited by state law, on the power of a city or
county or city and county to adopt and enforce additional regulations, not
in conflict with this act, imposing further conditions, restrictions, or
limitations with respect to any land or water use or other activity which
might adversely affect the resources of the coastal zone.
(b) On the power of any city or county or city and county to declare, prohibit,
and abate nuisances.
(c) On the power of the Attorney General to bring an action in the name
of the people of the state to enjoin any waste or pollution of the resources
of the coastal zone or any nuisance.
(d) On the right of any person to maintain an appropriate action for relief
against a private nuisance or for any other private relief.
PUBLIC RESOURCES CODE SECTION 30005
Nothing in this division shall be construed to authorize any local government,
or to authorize the commission to require any local government, to exercise
any power it does not already have under the Constitution and laws of this
state or that is not specifically delegated pursuant to Section 30519.
PUBLIC RESOURCES CODE SECTION 30005.5
Federally Owned or Leased Land in the Coastal Zone
Whenever federal law fails to preempt state regulations regarding the use
of certain federal land, the state retains jurisdiction over the land. In
California Coastal Commission v. Granite Rock Co., the U.S. Supreme Court
had to resolve the question whether federal law totally preempts the California
Coastal Commission's permit requirements for developments proposed within
the coastal zone. Finding that the federal Coastal Zone Management Act expressly
disclaims an intent to preempt state regulations, the court nevertheless
determined that federal authority must control with respect to federally
owned land. However, states are entitled to require environmental controls
on land uses occupying federal land, even if not land use controls as such.
(California Coastal Commission v. Granite Rock Co., (March 24, 1987)
107 S.Ct. 1419)
This varies from a 1974 California Attorney General's Opinion that indicated
that coastal development permit requirements could rarely be applied to
development that the United States carries out directly on federally owned
or leased land. If the federal government develops coastal zone land that
it does not own or lease, state coastal regulations would usually apply.
If a private party develops federally owned or leased land and is carrying
out a federal function which is impaired by state permit provisions, state
regulations may not be applied. (57 Ops.Cal.Atty.Gen 42 (1974))
Return to Index
COMMERCIAL USES
Adult Businesses -- Escort Services
The California Supreme Court preempted a San Francisco ordinance's provisions
that regulate escort services to the extent that they duplicate state criminal
law. (Cohen v. Board of Supervisors of the City and County of San Francisco
(1985) 40 Cal.3d 277)
Alcoholic Beverage Sales
A California Court of Appeal held that the city was not preempted from prohibiting
the transfer of a liquor license to a restaurant where the zoning had been
changed to single-family residential, which prohibited restaurants and where
the restaurant was continuing as a nonconforming use. The court, stating
that although a zoning ordinance cannot single out and prohibit sale of
liquor as such, added that it would probably be unreasonable and arbitrary
to exclude liquor in a district in which other retail businesses were allowed
to be conducted. However, the court also noted that the city could regulate
where various types of liquor businesses could operate, if the zoning ordinance
is validly enacted. (Town of Los Gatos v. State Board of Equalization
(1956) 141 Cal.App.2d 344, 347; Jon-Mar Co. v. City Anaheim (1962) 201 Cal.App.2d
832)
In a 1961 case, a cocktail lounge owner challenged a city ordinance requiring
a conditional use permit for cocktail lounges located within 200 feet of
residential zones. Despite the owner's assertion that the Alcoholic Average
Control Act preempted the ordinance, and other arguments against the ordinance,
the court upheld it. Because the legislature had granted cities and counties
the right to control various types of liquor businesses through validly
enacted zoning ordinances, the court ruled that the city could single out
liquor sales through a zoning ordinance. (Floresta, Inc. v. City Council,
(1961) 190 Cal.App.2d 599, 605)
No retail license shall be issued for any premises which are located in
any territory where the exercise of the rights and privileges conferred
by the license is contrary to a valid zoning ordinance of any city or county.
Premises which had been used in the exercise of such rights and privileges
at a time prior to the effective date of the zoning ordinance may continue
operation under the following conditions:
(a) The premises retain the same type of retail liquor license within a
license classification.
(b) The licensed premises are operated continuously without substantial
change in mode or character of operation.
BUSINESS & PROFESSIONS CODE SECTION 23790.
On and after July 1, 1988, no city, county, or city and county ordinance
or resolution adopted on or after May 5, 1987, shall have legal effect if
it legislatively prohibits the concurrent retailing of motor vehicle fuel
with beer and wine for off-sale consumption in zoning districts where the
zoning ordinance allows beer and wine and motor vehicle fuel to be retailed
on separate sites.
BUSINESS & PROFESSIONS CODE SECTION 23790.5(B)(3)
Nothing in this division interferes with the powers of cities conferred
upon them by Sections 65850 to 65861, inclusive, of the Government Code.
BUSINESS & PROFESSIONS CODE SECTION 23791
Fireworks Sales
A 1984 California Court of Appeal ruling reversed a lower court decision
by holding that the State Fireworks Law thoroughly addresses the administration
and regulation of fireworks manufacturing, transportation, licensing, sales,
and use. While the law provides for the limited participation of local governments
in regulating fireworks, to ban fireworks sales totally is not an option
available to local authorities, for such a ban is inconsistent with state
law. However, two subsequent bills, SB 2333 (Roberti) and SB 2334 (Ellis),
sponsored before the decision was widely disseminated, resulted in reversing
the court's ruling, so that cities and counties now do have the authority
to ban retail fireworks sales pursuant to Health & Safety Code Section
12541. (Ventura v. City of San Jose (1984) 151 Cal.App.3d 1076)
Lottery Ticket Sales, Distribution, Manufacturing and Advertising
It is the intent of this Chapter that all matters related to the operation
of the Lottery as established hereby be governed solely pursuant to this
Chapter and be free from regulation or legislation of local governments,
including a city, city and county, or county.
GOVERNMENT CODE SECTION 8880.69
Any other State or local law providing any penalty, disability, restriction,
or prohibition for the possession, manufacture, transportation, distribution,
advertising, or sale of any lottery tickets or shares shall not apply to
the tickets or shares of the California State Lottery.
GOVERNMENT CODE SECTION 8880.70
Swap Meets
Government Code Section 21661 defines swap meets of personal property. Generally
speaking, local zoning ordinances that regulate swap meets are not preempted
by state law, except when they act to supersede, supplant, or supplement
the reporting requirements of Buisness and Professions Code Sections 21660-21667.
(64 Ops.Cal.Atty.Gen. 848 (1981))
Return to Index
COMMERCIAL RENT CONTROL
The Costa-Keene-Seymour Commercial Property Investment Act of 1987 pursuant
to Civil Code Section 1954.25-1954.29, preempts local ordinances enacting
commercial rent control, with exceptions noted in Section 1954.27. Further,
Section 1954.29 indicates that the Act is not intended to enlarge or diminish
any other local planning and zoning power, nor is it intended to diminish
local authority to require a business license.
Return to Index
DISASTERS
In times of a declared disaster, the Governor may temporarily suspend local
zoning, among other things, by proclamation.
GOVERNMENT CODE SECTION 8654(A)(3)
Local agencies may not impose fees for any residential, commercial, or industrial
project reconstruction if the building was damaged or destroyed in a natural
disaster declared as such by the Governor. However, local agencies may still
impose fees on any portion of the reconstruction which is not substantially
equivalent to the damaged or destroyed property.
GOVERNMENT CODE 66010
Return to Index
Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-445-0613