EDUCATIONAL FACILITIES
Community College Sites
To promote the safety of students and comprehensive community planning the
governing board of each district before acquiring title to property for
a new community college site or for an addition to a present community college
site shall give the planning commission having jurisdiction notice in writing
of the proposed acquisition. The planning commission shall investigate the
proposed site and within 30 days after receipt of the notice shall submit
to the governing board a written report of the investigation and its recommendations
concerning acquisition of the site.
The governing board shall not acquire title to the property until the report
of the planning commission has been received. If the report does not favor
the acquisition of the property for a community college site, of for an
addition to a present community college site, the governing board of the
district shall not acquire title to the property until 30 days after the
commission's report is received.
EDUCATION CODE SECTION 81035
Elementary and Secondary School Sites and Facilities
A school district is not required to comply with city or county building
ordinances. Government Code Section 53091 does require a school district
to comply with city or county zoning ordinances of when such ordinance makes
provision for the location of public schools, and the city or county has
adopted a general plan. However, Government Code Section 53094 allows the
governing board of the school district to render a city or county zoning
ordinance inapplicable to proposed classroom facilities by vote of 2/3 of
its members. The school board must notify the affected city or county within
ten days of such action.
However, Government Code Section 53097 prevents a school district from exempting
itself from drainage improvement, road improvement or grading ordinances
or from conditions relating to the provision of onsite improvements. The
district is required to consider local offsite improvement requirements,
but need not comply with such improvements. If the district does not install
offsite improvements as requested by the city or county, the city or county
will not be liable for future injuries or damages resulting from failure
to install the improvements. A 1988 California Attorney General's Opinion
affirms the language of Section 53097. (71 Ops.Atty.Gen. 332 (1988))
Each local agency shall comply with all applicable building ordinances and
zoning ordinances of the county or city in which the territory of the local
agency is situated. On projects for which state school building aid is requested
by a local agency for construction of school facilities the city or county
planning commission in which said agency is located shall consider in its
review for approval information relating to attendance area enrollment,
adequacy of the site upon which the construction is proposed, safety features
of the site and proposed construction, and present and future land utilization,
and report thereon to the State Allocation Board. If the local agency is
situated in more than one city or county or partly in a city and partly
in a county, the local agency shall comply with such ordinances of each
city or county with respect to the territory of the local agency which is
situated in the city or county and shall not be applied to any portion of
the territory of the local agency which is situated outside the boundaries
of the city or county. Notwithstanding the preceding provisions of this
section, this section does not require a school district to comply with
the zoning ordinances of a county or city unless the city or county planning
commission has adopted a master plan.
Each local agency required to comply with building and zoning ordinances
pursuant to this section and each school district whose school buildings
are inspected by a city or county pursuant to Section 53092 shall be subject
to the provisions of the applicable ordinances of a city or county requiring
the payment of fees. The amount of such fees charged however, to a local
agency or school district shall not exceed the amount charged under the
ordinances to nongovernmental agencies for the same services or permits...
GOVERNMENT CODE SECTION 53091
(a) Notwithstanding any other provisions of this article, the governing
board of a local agency, by vote of four-fifths of its members, may render
a city or county zoning ordinance inapplicable to a proposed use of property
if the local agency at a noticed public hearing determines by resolution
that there is no feasible alternative to its proposal, except when the proposed
use of the property by such local agency is for facilities not related to
storage or transmission of water or electrical energy, including, but not
limited to, warehouses, administrative buildings or automotive storage and
repair buildings. The governing board of a local agency may make such determinations
at the time it approves an environmental impact report on its proposal required
by Division 13 (commencing with Section 21000) of the Public Resources Code.
Mailed notice of the public hearing shall be provided at least 10 days prior
to the hearing, to the owners of all proposed facility and a notice shall
be posted in a conspicuous place at the proposed site of such facility.
If mailed notice as required above would result in notice to more than 250
persons, as an alternative to such mailed noise, notice may be given by
placing a display advertisement of at least one-fourth page in a newspaper
of general circulation within the area affected by the proposed facility
and by posting such notice in a conspicuous place at the proposed site of
such facility.
(b) The board shall, within 10 days, notify the city or county, whose zoning
ordinance has been rendered inapplicable under subdivision (a), of such
action. If such governing board has taken such action the city or county
may commence an action in the superior court of the county whose zoning
ordinance is involved or in which is situated the city whose zoning ordinance
is involved, seeking a review of such action of the governing board to determine
whether it was supported by substantial evidence. The evidence before the
court shall include the record of the proceedings before the city, county,
and district. The city or county shall cause a copy of the complaint to
be served on the board. If the court determines that such action was not
supported by substantial evidence, it shall declare it to be of no force
and effect, and the zoning ordinance in question shall be applicable to
the use of the property by such local agency.
(c) "Feasible" as used in this section means capable of being
accomplished in a successful manner within a reasonable period of time,
taking into account economic, environmental, social, and technological factors.
GOVERNMENT CODE SECTION 53096
Notwithstanding any other provisions of this article, the governing board
of a school district shall comply with any city or county ordinance (1)
regulating drainage improvements and conditions, (2) regulating road improvements
and conditions, or (3) requiring the review and approval of grading plans
as such ordinance provisions relate to the design and construction of onsite
facilities and improvements, and shall give consideration to the specific
requirements and conditions of city or county ordinances relating to the
design and construction of offsite improvements, the city or county shall
not be liable for any injuries or for any damage to property caused by the
failure of the school district to comply with those ordinances.
This section shall remain in effect only until January 1, 1991, and as of
such date is repealed, unless a later enacted statute, which is chaptered
before January 1, 1991, deletes or extends such date.
GOVERNMENT CODE SECTION 53097
Notwithstanding any other provisions of this article except Section 53097,
the governing board of a school district, by vote of two-thirds of its members,
may render a city or county zoning ordinance inapplicable to a proposed
use or property by such school district except when the proposed use of
the property by such school district is for nonclassroom facilities, including,
but not limited to, warehouses, administrative buildings, automotive storage
and repair buildings. The board shall, within 10 days, notify the city or
county concerned of such action. If such governing board has taken such
action the city or county may commence an action in the superior county
of the county whose zoning ordinance is involved or in which is situated
the city whose zoning ordinance is involved, seeking a review of such action
of the governing board of the school district to determine whether it was
arbitrary and capricious. The city or county shall cause a copy of the complaint
to be served on the board. If the court determines that such action was
arbitrary and capricious, it shall declare it to be of no force and effect,
and the zoning ordinance in question shall be applicable to the use of the
property by such school district.
This section shall remain in effect only until January 1, 1991, and as of
that date is repealed, unless a later enacted statute, which is enacted
before January 1, 1991, deletes or extends that date. If that date is not
deleted or extended, then, on and after January 1, 1991, pursuant to 53094
of the Government Code, as amended by Section 1 of Chapter 760 of the Statutes
of 1976, shall have the same force and effects as if this temporary provision
had not been enacted.
GOVERNMENT CODE SECTION 53094
Plan Checking and Inspection Fees for Street Modification Adjacent to
a State University Campus
A California Attorney General's Opinion notes that the Trustees of the California
State University and Colleges are not required to pay a city's plan checking
and inspection fees for construction modifications of city streets adjacent
to a state university campus if personnel employed by the Trustees perform
these same services. (62 Ops.Cal.Atty.Gen. 443 (1979))
Stadium Light Renovation on a High School Campus
A court of appeal ruling upheld a local school board's decision to exempt
itself from a local zoning regulation that would have required a permit
to replace decaying light poles with new, higher ones at a high school stadium
that functions as a multi-use facility. Considering neighboring citizens'
objections, the city took issue with the school board's invocation of Government
Code Section 53094 to declare the city's zoning ordinance inapplicable to
the district. But the court rejected the city's arguments, noting that the
stadium "serves an important educational purpose . . and is directly
used for student instruction." (City of Santa Cruz v. Santa Cruz Schools
Board of Education, (1989) 210 Cal.App.3d 1)
University of California Improvement Construction Projects
In 1978 the California Court of Appeal ruled that a city could not enforce
its construction permit fee ordinance when applied to a University of California
improvement construction project. The court held that the university regents
have virtually plenary power in regulating the university's affairs. As
such, the University's project, which was solely for educational purposes,
was not subject to municipal regulation, and was exempt from local zoning
regulations and building codes. (Regents of the University of California
v. City of Santa Monica (1978) 77 Cal.App.3d 130)
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ENERGY RESOURCES
Atomic/Nuclear Energy Facilities in General
Through the Atomic Energy Act (42 USC 2011-2394, especially 42 USC 2012),
the Federal Government has primary jurisdiction over atomic/nuclear energy
resource development, use, and regulation. The State of California has entered
into an agreement with the Atomic Energy Commission, pursuant to 42 USC
2021, to assume certain authority to regulate atomic energy (Health &
Safety Code Section 25876). The California Atomic Energy Development Law
(Health & Safety Code Section 25700-25772) sets forth the state's regulatory
authority. Although Section 25732 of the law provides for state and local
governmental coordination of programs, rules and regulations controlling
atomic energy development, the nature and extent of local control are unclear.
While Health & Safety Code Section 25840 requires city and county ordinances
relating to radioactive materials or other sources of radiation to be consistent
with state regulations, the law still is not clear that it relates to zoning
regulation of atomic energy facilities (Longtin, p. 320).
Even though the Attorney General's Office deduced in 1978 that federal nuclear
energy regulations preempt California's nuclear power plant siting and certification
statutes, Government Code Sections 25524.1 - 25524.3 (61 Ops.Cal.Atty.Gen.
159 (1978)), a subsequent federal court case contradicts it in part. The
federal Atomic Energy Act does not preempt state laws concerning atomic
power plant siting, because state laws were enacted for purposes other than
for radiation hazard protection. (Pacific Legal Foundation v. State Energy
Resources Conservation and Development Commission (9th Circ. 1981) 659 F2d
903)
Coastal Zone Electrical Transmission, Generation, and Thermal Facilities
The California Energy Commission retains sole authority to certify all sites
and related facilities, except those located in the specifically designated
California Coastal Zone. A commission certification is issued in lieu of
any state, local or regional agency, or federal agency permit, certificate,
or entitlement for such a site and related facilities. Pursuant to Public
Resources Code Section 25500, such certifications also supersede any applicable
statute, ordinance, or regulation of any state local or regional agency.
Public Resources Code Section 25110 defines a "facility" as any
electric transmission line or thermal power plant. A 1977 Attorney General's
Opinion describes the degree of the Energy Commission's jurisdiction over
transmission line construction as related to power plants. (60 Ops.Cal.Atty.Gen.
239 (1977); Longtin, pp. 318-319)
In accordance with the provisions of this division, the commission shall
have the exclusive power to certify all sites and related facilities in
the state, whether a new site and related facility or a change or addition
to an existing facility. The issuance of a certificate by the commission
shall be in lieu of any permit, certificate, or similar document required
by any state, local or regional agency, or federal agency to the extent
permitted by federal law, for such use of the site and related facilities,
and shall supersede any applicable statute, ordinance, or regulation of
any state, local, or regional agency, or federal agency to the extent permitted
by federal law.
After the effective date of this division, no construction of any facility
or modification of any existing facility shall be commenced without first
obtaining certification for any such site and related facility by the [State
Energy] commission, as prescribed in this division.
PUBLIC RESOURCES CODE SECTION 25500.
Electrical Energy Generation, Storage, and Transmission Facilities and
Substations
Government Code Section 53091 preempts local building and zoning ordinances
from the siting of electrical power plants or substations, but Public Utilities
Code Section 12808.5 requires municipal utility districts to make findings
of consistency with the local general plan.
"....Building ordinances of a city or county shall not apply to the
location or construction of facilities for the production, generation, storage,
or transmission of water, waste water, or electrical energy by a local agency.
"Zoning ordinances of a county or city shall not apply to the location
or construction of facilities for the production, generation, storage, or
transmission of water, or for the production or generation of electrical
energy, nor to facilities which are subject to section 12808.5 of the Public
Utilities Code, nor to electrical substations in an electrical transmission
system which receives electricity as less then 100,000 volts. Zoning ordinances
of a county or city shall apply to the location or construction of facilities
for the storage or transmission of electrical energy by a local agency;
provided, that such zoning ordinances make provision for such facilities."
GOVERNMENT CODE SECTION 53091, IN PART
Thermal Power Plants
Public Resources Code Section 25120 defines a thermal power plant as a stationary
or floating electrical generating facility using any source of thermal energy,
with a generating capacity of 50 megawatts or more. Public Resource Code
Section 25500 apparently preempts any local authority to regulate a thermal
power plant's siting, but local agencies within whose boundaries the site
is proposed are accorded the opportunity to review and comment on such applications
by section 25519(e). Local agencies may comment on facility design, architectural
features, highway access, landscaping, grading, public use of land in the
facility's area, and other aspects. With certain exceptions, the Energy
Commission may not certify a facility if it does not comply with state,
local, or regional ordinances or standards, pursuant to Public Resource
Code Section 25525.
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FERRY SERVICE
Ferry services that the Public Utilities Commission certifies do not need
to obtain local use permits for downtown terminal sites. The Public Utilities
Commission's certification of a ferry service constitutes a state granted
authority which prevails over local zoning. (Harbor Carriers, Inc. v.
City of Sausalito (1985) 46 Cal.App.3d 773)
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FLOODING AND FLOOD CONTROL
Public agencies may not revise flood plain regulations or grant variances
from them unless they obtain state or local flood control agency permission.
WATER CODE SECTION 8414.2.
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GOVERNMENTAL BUILDINGS AND USES
As discussed in preceding sections of this paper's text, the U.S. Constitution
and the California Constitution both contain language that courts have interpreted
as authority for federal and state preemption of local regulation. In the
context of land use planning, this authority is brought to bear in the siting
of government buildings and uses of property. In short, state and federal
governmental facilities need not comply with local building and zoning regulations.
Probably several case law examples exist, but only the following two are
described for purposes of illustration.
State Unemployment Offices
When the state leases a building in a tenant's capacity for use as an unemployment
insurance office, its operation is not subject to local building and zoning
ordinances unless the state legislature consents to such regulation. (City
of Orange v. Valenti (1974) 37 Cal.App.3d 240)
U.S Postal Service Facilities
The U.S. Postal Service is exempt from county zoning regulations when it
constructs a post office on land owned or leased by the federal government.
(United States v. City of Pittsburg (9th Circ. 1981) 661 F.2d 783;
68 Ops.Cal.Atty.Gen. 310 (1985))
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HAZARDOUS WASTE AND TOXICS
Conditional Use Permit Amendments for Hazardous Waste Facilities
(a) No city, county, or city and county, whether general law or chartered,
which has issued a conditional use permit for a hazardous waste facility
shall thereafter adopt an ordinance, rule, or regulation, or issue or amend
any permit, which adoption, issuance, or amendment imposes additional restrictions
on the types of hazardous waste which previously have been authorized to
be accepted for disposal, treatment, or storage under the terms and conditions
of any previously issued conditional use permit for that facility.
(b) This section does not apply to a modification or revocation of a use
permit which is necessary to enforce the terms and conditions of the use
permit, or to abate a nuisance, or to prevent an immediate threat to the
public health and safety. Modification or revocation of an existing use
permit may only occur after the city, county, or city and county orders
the facility operator to abate the nuisance or correct the threat to the
public health or safety, and the facility operator has failed to comply
with the enforcement or abatement order.
(c) This section does not apply to an existing hazardous waste facility,
as defined in Section 25148.
HEALTH & SAFETY CODE SECTION 25149.1
Existing hazardous waste facilities are defined as follows:
(a) Except as otherwise provided in subdivision (b), "existing hazardous
waste facility" means a Class I disposal site, as defined in Section
2510 of Title 23 of the California Administrative Code on the effective
date of this article, and which, in addition, is either:
(1) A facility operating as of May 1, 1981, pursuant to a grant of interim
status by the department pursuant to Section 25200.5.
(2) A facility operating as of May 1, 1981, pursuant to a grant of interim
status by the department pursuant to Section 25200.5.
(b) An "existing hazardous waste facility" does not include a
facility which treats, disposes, stores, or recycles on the production site
only hazardous wastes produced by the owner or lessee of such a facility.
HEALTH & SAFETY CODE SECTION 25148
Hazardous Waste Disposal and Treatment
The Federal Resource Conservation and Recovery Act and state hazardous waste
management act do not preempt an ordinance declaring permanent disposal
of hazardous wastes to be a nuisance. (Land Use Law, Dec. 1986, p.
22; see item 227, W. Va.)
Neither Health & Safety Code Section 25149 nor Government Code Section
66796.11 preempts reasonable local regulation of the disposal and treatment
of toxic waste not amounting to an outright prohibition, even in the absence
of findings of the Department of Health Services. Nor is such local regulation
impliedly preempted by full state regulation of the field, since the language
of Health & Safety Code Section 25149, when reasonably construed, indicates
that the Legislature intended to permit reasonable local regulation of toxic
waste disposal. (Casmalia Resources, Ltd. v. County of Santa Barbara,
(Oct. 1987) 195 Cal.App.3d 827)
Hazardous Waste Management and Siting
Since the Resource Conservation and Recovery Act (RCRA) provides no guidelines
for hazardous waste facility siting, states are free to devise their own
guidelines and processes for such siting. (Duffy, P. 757)
Regardless, California defers to all local land use requirements during
its site approval process. Local land use regulation of existing facilities
may not be preempted. "Existing hazardous waste facility" is defined
in the subsection immediately preceding. (Health & Safety Code Section
25147)
Nuclear Fuel/Radioactive Waste Importation and Storage
The Federal Atomic Energy Act of 1954 and Hazardous Materials Transportation
Act (HMTA) both preempt a New Jersey township's ordinance prohibiting the
importation of spent nuclear fuel or other radioactive waste for storage
in the township. The Atomic Energy Act authorizes the Nuclear Regulatory
Commission (NRC) to regulate radioactive material transportation and storage.
Despite the Act's subsequent amendment and the NRC's issuance of regulations
allowing for states to regulate certain matters by agreement, states may
not regulate the construction or operation of any production facilities.
The court conceded, however, that state regulations founded on economic
concerns might not be preempted, the federal government nevertheless has
complete control of nuclear energy generation's safety aspects, which the
local ordinance sought to regulate. (Land Use Law, August 1986, pp.
19-20; Jersey Central Power & Light Company v. Township of Lacey
(1985) 772 F.2d 1103 U.S. Court of Appeals, Third Circuit [intermediate
court])
PCB Disposal Facilities Regulated by EPA
The federal Toxic Substances Control Act (TOSCA) preempts a local ordinance
which closes a PCB disposal facility. Local exclusion of any hazardous waste
facility would violate federal law, as a strong federal role is essential
to oversee local government regulation of hazardous wastes. (Rollins
Environmental Services, Inc. v. Parish of St. James, (Nov. 1, 1985)
54 U.S.L.W. 2248)
State Easements on Hazardous Waste Sites or Buffer Zones
Upon designation of land as hazardous waste property or border zone property
pursuant to Section 25229, the director shall issue and cause to be served
on the owner of the property and shall give notice to the legislative body
of the city or county in whose jurisdiction the land is located and any
other persons who were permitted to intervene in the proceeding, orders
requiring all of the following:
(a) The execution and recordation of a written instrument which imposes
an easement upon the present and future uses of all or part of the land
which has been designated a hazardous waste property or a border zone property.
Such easement shall permit the department or its representatives to enter
the land, subject to Section 25185.5, to monitor problems regarding hazardous
wastes. The easement shall be executed by all the owners of such land and
by the director, shall particularly describe the real property affected
by the instrument, and, if applicable, the location of the easement on the
real property. The easement shall be recorded with the recorder of the county
in which the land is located within 10 days of the date of execution and
shall be indexed by the county recorder in the grantor index in the name
of the record title owner of the real property and in the grantee index
in the name of the department. The easement shall state that the land described
in the instrument is subject to a hazardous waste easement. Notwithstanding
any other provision of law, an easement executed pursuant to this section
shall run with the land from the date of recordation and shall be binding
upon all of the owners of the land, their heirs, successors, and assignees,
and the agency, employees, or lessees of such owners, heirs, successors,
and assignees. The easement shall be enforceable by the department pursuant
to Article 8 (commencing with Section 25180). Notwithstanding any other
provision of law, any easement held by the department shall not be sold
or otherwise transferred to another person.
(b) The execution and service of a written instrument to accompany all lease
or rental agreements relating to the land which has been designated a hazardous
waste property or a border zone property. Health & Safety Code Section
25230. The instrument shall be prepared by the owner or lessor of the land
and shall contain the following statement:
"The land described herein contains hazardous waste or is within 2,000
feet of land that contains hazardous waste. Such conditions render the land
and the owner, lessee, or other possessor of the land subject to requirements,
restrictions, provisions, and liabilities contained in Chapter 6.5 (commencing
with Section 25100 of Division 20 of the Health & Safety Code) This
statement is not a declaration that a hazard exists."
HEALTH AND SAFETY CODE SECTION 25230
Toxic Cleanup Sites
In 1988, a federal district court held that federal law preempts local governments
decisions to deny permission for toxic cleanup sites. Under contract with
the federal government, a private corporation agreed to decontaminate land
used for radioactive thorium waste material storage. Maywood Borough sought
to prevent conveyance of the site from the corporation to the government
on the basis that the previous site plan and subdivision approval were not
granted under local ordinances and state statute. However, the court found
that energy and water development appropriations for 1984, 1985, and 1986
carried forth Congress' environmental goals and its specific intent to facilitate
the site's decontamination. The court added that the appropriations authorized
the site's acquisition for the express purpose of fulfilling the objective
of decontamination. (Borough of Maywood v. United States (1988) 679
F.Supp. 413)
In its ruling, the court noted that the Constitution's supremacy clause
invalidates state laws that conflict with an act of Congress, that the local
planning board's denial of the site plan approval conflicted with Congress'
clean-up directives, and therefore the planning board's denial is preempted.
Variances on Hazardous Waste Sites
(a) Except as provided in subdivision (c) of this section, after the director
has provided notice in compliance with Section 25222 and a hearing or decision
regarding specific land is pending, or after a hearing has been conducted
and a decision has been made pursuant to Section 25229 that land is a hazardous
waste property, then none of the following shall occur on the land without
a specific variance approved in writing by the department for the land use
and land in question:
(1) Any new use of the land, other than the use, modification, or expansion
of an existing industrial or manufacturing facility or complex on land land
which is owned by, or held for the beneficial use of, such facility or complex
as of January 1, 1981, and which is a hazardous waste property as defined
in Section 25117.3
(2) Subdivision of such land, as that term is used in Division 2 (commencing
with Section 66410) of Title 7 of the Government Code, except that this
paragraph shall not prevent the division of a parcel of land so as to divide
that portion of the parcel which is designated a hazardous waste property
from other portions of such parcel not so designated.
(b) Except as provided in subdivision (c) of this section, after the director
has provided notice in compliance with Section 25222 and a hearing or decision
regarding specific land is pending, or after a hearing has been conducted
and a decision has been made pursuant to Section 25229 that land is a border
zone property, then none of the following shall occur on the land without
a specific variance approved in writing by the department for the land use
and land in question:
(1) Construction or placement of a building or structure on the land which
is intended for use as any of the following, or the new use of an existing
structure for the purpose of serving as any of the following:
(A) A residence, including any mobilehome or factory built housing constructed
or installed for use as a permanently occupied human habitation, except
that the addition of rooms or living space to an existing single-family
dwelling or other minor repairs or improvements to residential property
which do not change the use of the property or increase the population density
does not constitute construction or placement of a building or structure
for the purposes of this paragraph.
(B) A hospital for humans
(C) A school for persons under 21 years of age
(D) A day care center for children
(E) Any permanently occupied human habilitation other that those used for
industrial purposes
(2) Subdivision of such land, as that term is used in Division 2 (commencing
with Section 66410) of Title 7 of the Government Code, except that this
paragraph shall not prevent the division of a parcel of land so as to divide
that portion of the parcel which is designated a border zone property from
other portions of such parcel not so designated.
(c) This section shall not apply to a portion of a parcel of land which
is determined by the director to meet all of the following requirements:
(1) The parcel has been previously classified as a class II-1 disposal site
as defined in Section 2510 or 2511 or Title 23 of the California Administrative
Code.
(2) The portion of the parcel is physically isolated from the remainder
of the classified parcel by the construction of a freeway, as defined in
Section 332 of the Vehicle Code, which divides the classified parcel.
(3) The portion of the parcel has not been used as a hazardous waste disposal
site.
(4) The portion of the parcel does not contain or overlie hazardous waste.
HEALTH & SAFETY CODE SECTION 25232
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HEALTH SERVICES
Alcoholism Recovery Facilities
Whether or not unrelated persons are living together, an alcoholism recovery
facility which serves six or fewer persons shall be considered a residential
use of property for the purposes of this article. In addition, the residents
and operators of such a facility shall be considered a family for the purposes
of any law or zoning ordinance which relates to the residential use of property
pursuant to this article.
For the purpose of all local ordinances, and alcoholism recovery facility
which serves six or fewer persons shall not be included within the definition
of a boarding house, rooming house, institution or home for the care of
minors, the aged, or the mentally infirm, foster care home, guest home,
rest home, sanitarium, mental hygiene home, or other similar term which
implies that the alcoholism recovery home is a business run for profit or
differs in any other way from a single-family residence.
This section shall not be construed to forbid any city, county, or other
local public entity from placing restrictions on building heights, setback,
lot dimensions, or placement of signs of an alcoholism recovery facility
which serves six or fewer persons as long as the restrictions are identical
to those applied to other single-family residences.
This section shall not be construed to forbid the application to an alcoholism
recovery facility of any local ordinance which deals with health and safety,
building standards, environmental impact standards, or any other matter
within the jurisdiction of a local public entity. However, the ordinance
shall not distinguish alcoholism recovery facilities which serve six or
fewer persons from other single-family dwellings or distinguish residents
of alcoholism recovery facilities from persons who reside in other single-family
dwellings.
No conditional use permit, zoning variance, or other zoning clearance shall
be required of an alcoholism recovery facility which serves six or fewer
persons that is not required of a single-family residence in the same zone.
Use of a single-family dwelling for purposes of an alcoholism recovery facility
serving six or fewer persons shall not constitute a change of occupancy
for purposes of Part 1.5 (commencing with Section 17910) of Division 13
or local building codes. However, nothing in this section is intended to
supersede Section 13143 or 13143.6, to the extent those sections are applicable
to alcoholism recovery facilities providing care for six or fewer residents.
HEALTH & SAFETY CODE SECTION 11834.23
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HOMESTEADS CREATED BY PROBATE COURT
When a probate court creates a homestead and a local subdivision ordinance
conflicts with it, the local subdivision ordinance does not apply. In 1983
the California Supreme Court ruled that a local subdivision ordinance which
conflicts with the state homestead law and would "materially interfere"
with the probate court's exercise of its discretion in considering the family's
and the creditors' interests in the property is ineffective. The court noted
that the state constitution allows cities and counties to make and enforce
ordinances as long as they are not in conflict with general laws. (Wells
Fargo Bank v. Town of Woodside, (1983) 33 Cal.3d 379)
This decision superseded a 1981 Attorney General's opinion regarding court-ordered
physical divisions of real property in a partition action. The opinion indicated
that such partitions must comply with the requirements of the Subdivision
Map Act, local ordinances adopted under the Act, zoning ordinances, and
the general plan for the area in which the property is located. (64 Ops.Atty.Gen.
762 (1981))
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HOSPITALS
". . . It is the intent of the Legislature to preempt from local jurisdictions
the enforcement of all building standards published in the State Building
Standards Code relating to the regulation of hospital projects and the enforcement
of other regulations adopted pursuant to this chapter, and all other applicable
state laws, including the plan checking and the inspection of the design
and details of the architectural, structural, mechanical, plumbing, and
electrical systems, and the observation of construction. The Office of Statewide
Health Planning and Development shall assume these responsibilities by establishing,
maintaining, and operating separate, but coordinated, plan review and field
inspection units within the office.
HEALTH AND SAFETY CODE SECTION 15001, IN PART
All lands necessary for the use of state hospitals except those acquired
by gift, devise, or purchase, shall be acquired by condemnation as lands
for other public uses are acquired.
The terms of every purchase shall be approved by the Department of Mental
Hygiene. No public street or road for railway or other purposes, except
for hospital use, shall be opened through the lands of any state hospital,
unless the Legislature by special enactment consents thereto.
WELFARE & INSTITUTIONS CODE SECTION 4104.
All lands necessary for the use of state hospitals except those acquired
by gift, devise, or purchase, shall be acquired by condemnation as lands
for other public uses are acquired.
The terms of every purchase shall be approved by the State Department of
Developmental Services. No public street or road for railway or other purposes,
except for hospital use, shall be opened through the lands of any state
hospital, unless the Legislature by special enactment consents thereto.
WELFARE & INSTITUTIONS CODE SECTION 4444.
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HORSE RACING
State regulations preempt a county's authority to exclude horse racing from
the entire county, for the state has occupied the field where horse racing
is concerned. This decision creates a preemption for horse racing where
it is permitted by the state. (Desert Turf Club v. Board of Supervisors
(1956) 141 Cal.App.2d 446; Longtin, p. 116)
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Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-445-0613