INDUSTRIAL USES
Screening For Junkyards - Scrap Metal Processing Facilities
Notwithstanding any other provision of this article, junkyards, scrap metal
processing facilities, and automobile dismantling facilities may be established,
operated or maintained within areas adjacent to any highway included in
the national system of interstate and defense highways or the federal-aid
primary highway system which are within 1,000 feet of the nearest edge of
the right-of-way if they are zoned industrial or if the junkyard, scrap
metal processing facility, or automobile dismantling facility is located
in unzoned industrial areas as determined by the department; provided, that
the department is authorized to screen junkyards, scrap metal processing
facilities, and automobile dismantling facilities located within such industrial
zones or unzoned industrial areas so as not to be visible from the main
traveled way of such highways if the director finds that such screening
is necessary or desirable for the purposes set forth in subdivision (a)
of Section 745. The director's determination as to what constitutes an unzoned
industrial area shall be subject to approval by the Secretary of Commerce
of the United States.
STREETS & HIGHWAYS CODE SECTION 749
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INITIATIVES
Initiatives that forestall annexations until citizens approve an amendment
to a general plan's land use element by majority vote
In L.I.F.E. Committee v. City of Lodi (89 Daily Journal D.A.R. 11386,
California Court of Appeal, Third Appellate District, Sept. 6, 1989), the
court of appeal overturned a local initiative that kept annexations from
being approved until local voters approve an amendment to the general plan's
land use element. The court found that the initiative measure conflicts
and unlawfully interferes with the state's annexation process. The court
cited Ferrini v. City of San Luis Obispo ((1983) 150 Cal.App.3d 239)
as the basis for its decision. The latter held that annexation is a matter
of statewide concern, and that the Legislature intended to occupy the field
with regard to annexation.
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MINING
Mining on Federally Owned Land
States are permitted to impose environmental controls on mining activities
on federally owned land, according to a 1987 U.S. Supreme Court ruling.
In this case, the high court held that the California Coastal Commission
could require a company to obtain a permit for its limestone mining operations
in the Big Sur region of the federally owned Los Padres National Forest.
The decision represented a victory for states, particularly western states
with substantial acreage owned by the federal government. It allows states
to impose environmental regulations upon private mining operations conducted
on federal lands. The decision may have a far broader reach, for the Court
has distinguished "land-use decisions" from "environmental
regulation," noting that states may impose "environmental regulations"
even where they have no authority to make "land-use decisions"
(California Coastal Commission, et al. v. Granite Rock Company, (1987)
107 S.Ct. 1419; Curtin, p. 66)
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NATIVE AMERICAN/INDIAN LAND
Building and Zoning Ordinances in General
Federal policy and legislation have preempted state and local governments
from regulating Indian land, and thus, a county may not enforce its zoning
ordinance or building code except unless by Congress. (Santa Rosa Band
of Indians v. Kings County, (9th Cir. 1975) 532 F.2d 655, 658)
Outdoor Advertising on Indian Reservation Land Adjacent to Interstate
Highways
Despite the preceding preemption, outdoor advertising on Indian reservation
property that lies adjacent to an interstate highway is subject to regulation
by the California Outdoor Advertising Act. In a 1984 California Court of
Appeal case, the court found that the federal Highway Beautification Act
(23 U.S.C. Sections 131 et seq.) contains limits on acceptable advertising
devices located adjacent to interstate highways, but it also leaves implementation
of these limits to individual states. California's implementation is realized
by the California Outdoor Advertising Act. The court ruled that the Outdoor
Advertising Act does apply to Indian reservation lands adjacent to interstate
highways, after applying the 'balancing of interests' legal standard. (People
v. Naegele Outdoor Advertising Company (1984) 152 Cal.App.3d 516)
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NOISE
A recent federal appeals court reversed a previous decision remanded from
the Supreme Court. The newest decision held that federal regulations do
not totally preempt state regulation where the federal Environmental Protection
Agency has failed to regulate (1) noise at a railroad property line and
(2) noise from certain equipment. Specifically, the court held that the
Delaware noise control statute is not preempted by federal Noise Control
Act on its face or as applied to the railroad facility. (Baltimore and
Ohio Railroad Co. v. Oberly (Jan. 8, 1988) 837 F.2d 108, U.S. Court
of Appeals, 3rd Cir.)
Until the Baltimore and Ohio decision, state governments had been guided
by the Federal Noise Control Act of 1972, which prevented any state or political
subdivision from adopting or enforcing any noise regulation which is not
identical to EPA regulations. The only exception is that states and local
governments could control environmental noise through licenses, regulations,
and restrictions on the use, operation, or movement of any product or combination
of products. (42 U.S.C. 4905(e))
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OIL, GAS, HYDROCARBONS AND MINERAL EXTRACTION
Oil Company Leases of Government Land
Oil companies with leases from the Federal Government are not required to
obtain permits as required by the local zoning ordinance. (Ventura County
v. Gulf Oil Corp. (1979) 601 F.2d 1080, 9th Cir.)
Oil, Gas, other Hydrocarbons or Mineral Extraction Leases
The following statute applies:
(a) The board of supervisors, boards of trustees, directors or other governing
body of any county or other public or quasi-public corporation, body or
agency authorized to acquire and hold real property pursuant to the statutory
authority under which such county, corporation, body or agency is created
may, under such limitations and restriction as are prescribed by law, lease
for the production of oil, gas and other hydrocarbons or for the mining
of any other minerals whatsoever, any land owned by the county or such other
public or quasi-public corporation, body or agency, or include such land
in a community lease embracing adjoining lands, or enter into compensatory
royalty agreement in lieu of making such lease, whenever, in the judgment
of the governing body, the public use of such property shall not be substantially
interfered with thereby. No land used, owned, dedicated, or acquired by
purchase, condemnation, gift, or otherwise, as a public park, highway, street,
walk, or public use of such property shall not be substantially interfered
with thereby; provided, however, that if in the judgment of the governing
body of any such park, highway, street, walk or public playground, drilling
for oil or gas would not substantially interfere with the use of such property
for park, highway, street, walk or playground purposes, then any such lease
on any such property shall provide that drilling for oil or gas beneath
the surface of such property shall be done by means of slant drilling from
surface locations, outside the outer boundaries of any such property, or
from designated locations inside the outer boundaries of such property,
which inside locations have been approved by the county parks commission
and will not interfere substantially with the use of such property for such
park, highway, street, walk or playground purposes. No land owned or under
the jurisdiction of the county or such other public or quasi-public corporation,
body or agency lying within 300 feet above the line of high tide, or at
any point below the line of high tide, of the Pacific Ocean, or any arm,
bay, or inlet of the Pacific Ocean shall be leased for the drilling for
and production of petroleum products or other minerals, unless the use of
such property for public purposes shall be leased for the drilling for and
production of petroleum products or other minerals, unless the use of such
property for public purposes shall not be substantially interfered with
thereby; provided, however, that if in the judgment of the governing body
of any such land, drilling for oil or gas would not substantially interfere
with the use of such property for public purposes, then any such lease on
any such property shall provide that drilling for oil or gas beneath the
surface of such property shall be done by means of slant drilling from surface
locations, outside the outer boundaries of any such property, or form designated
location inside the outer boundaries of such property, which inside locations
have been approved by the governing body and will not interfere substantially
with the use of such property for public purposes.
(b) Notwithstanding any other provision of this section, no tide or submerged
lands owned or under the jurisdiction of the county or such other public
or quasi-public corporation, body or agency shall be leased for the exploration
for, drilling for or production of petroleum products within the boundaries
of the areas of the County of Los Angeles described in subdivision (a) of
Section 6871.2 unless such lands are within one nautical mile of the ordinary
high water mark, the applicable conditions of the Public Resources Code
and requirements of the State Lands Commission have been met, and the drilling
for oil and gas deposits is to be done by means of slant drilling from an
upland site.
PUBLIC RESOURCES CODE SECTION 7051
Oil Well Regulation
Many state statutes regulate oil and gas production (Public Resources Code
Section 3000-3787). However, oil well regulation does not preempt reasonable
local zoning regulation. (Beverly Oil Co. v. City of Los Angeles,
(1953) 40 Cal.2d 552; Longtin, p. 317)
Outer Continental Shelf Lease Sales
Federal Outer Continental Shelf (OCS) lease sales are not subject to a consistency
determination as provided by the Coastal Zone Management Act (CZMA). (Secretary
of the Interior v. California, (Jan. 11, 1984) 52 U.S.L.W. 4063, U.S.
Supreme Court)
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OUTDOOR ADVERTISING (SIGNS AND
BILLBOARDS)
The federal Highway Beautification Act and the California Outdoor Advertising
Act (Business and Professions Code Sections 5200-5486), administered by
CalTrans, seek to control and regulate outdoor advertising along federal
interstate, federally aided, and state highways. Both acts occupy the entire
field of outdoor advertising, thus preempting cities and counties to the
extent the act controls (Business and Professions Code Section 5227). However,
the act is intended to provide minimum standards only and, with exceptions,
local agencies may impose restrictions on advertising displays equal to
or greater than those imposed by the act.
Local agencies may not require owners of certain advertising displays, including
those lawfully erected and still in existence on November 6, 1978 to remove
them. (Business and Professions Code Section 5412.5). In order for cities
and counties to force such removal, they must compensate the owner pursuant
to specific amortization schedules. (Business and Professions Code Sections
5412, 5412.1, & 5412.2; Longtin, pp. 283-284)
Notwithstanding any other provision of this chapter, no advertising display
which was lawfully erected anywhere within this state shall be compelled
to be removed, nor shall its customary maintenance or use be limited, whether
or not the removal or limitation is pursuant to or because of this chapter
or any other law, ordinance, or regulation of nay governmental entity, without
payment of compensation, as defined in the Eminent Domain Law (Title 7 (commencing
with Section 1230.010) of Part 3 of the Code of Civil Procedure), except
as provided in Sections 5412.1, 5412.2, and 5412.3. The compensation shall
be paid to the owner or owners of the advertising display and the owner
or owners of the land upon which the display is located.
This section applies to all displays which were lawfully erected in compliance
with state laws and local ordinances in effect when the displays were erected
if the displays were in existence on November 6, 1978, or lawfully erected
after November 6, 1978, regardless of whether the displays have become nonconforming
or have been provided an amortization period. This section does not apply
to on-premise displays as specified in Section 5272 or to displays which
are relocated by mutual agreement between the display owner and the local
entity.
Relocation, as used in this section, includes removal of a display and construction
of a new display to substitute for the display removed.
It is a policy of this state to encourage local entities and display owners
to enter into relocation agreements which allow local entities to continue
development in a planned manner without expenditure of public funds while
allowing the continued maintenance of private investment and medium of public
communication. Cities, counties, cities and counties, and all other local
entities are specifically empowered to enter into relocation agreements
on whatever terms are agreeable to the display owner and the city, county,
city and county, or other local entity, and to adopt ordinances or resolutions
providing for relocation of displays.
BUSINESS AND PROFESSIONS CODE SECTION 5412
A city or county may not deny, refuse to issue, or condition the issuance
of a business license or a permit to construct a new legal on premises advertising
display upon the removal, conformance, repair, modification, or abatement
of any other on-premises advertising display on the same real property where
the business is to be or has been maintained if both of the following apply:
(a) The other display is located within the same commercial complex which
is zoned for commercial occupancy or use, but at a different business location
from that for which the permit or license is sought.
(b) The other display is not owned or controlled by the permit applicant,
and the permit applicant is not the agent of the person who owns or controls
the other display.
BUSINESS AND PROFESSIONS CODE SECTION 5498.1
(a) During the amortization period for a nonconforming legally in place
on-premises advertising display's continued use, a city or county may not
deny, refuse to issue, or condition the issuance of a permit for modification
or alteration to the display upon change of ownership of any existing business
if the modification or alteration does not include a structural change in
the display.
(b) Subdivision (a) of this section does not apply to any ordinance introduced
or adopted prior to March 12, 1983, or adopted pursuant to subdivision (j)
of Section 5497, if the ordinance contains no specific amortization schedule,
but instead requires conformity upon change of ownership.
BUSINESS AND PROFESSIONS CODE SECTION 5498.2
"For Sale" Signs
Civil Code Section 713 provides that a property owner may display a sign
advertising property for sale, lease or exchange "notwithstanding any
provision of any ordinance."
Off-site Advertising Signs
The trial court enjoined an advertising company from maintaining offsite
advertising signs and structures which were in violation of a city's comprehensive
land use zoning ordinance, and ordered them removed. The ordinance permitted
offsite signs only in general commercial zoning districts, and, with a permit,
in unclassified zones. It declared all offsite signs and billboards in other
zones nonconforming uses and public nuisances, and required their removal
within five years. The court found that the ordinance was a valid exercise
of the city's police power; that the signs were public nuisances as a matter
of law; that the ordinance's five-year amortization period was a reasonable
exercise of the police power; and that the corporation was therefore not
entitled to compensation for damages sustained in removing the signs. The
United States Supreme Court subsequently held that the ordinance was facially
unconstitutional insofar as it constituted a general ban on noncommercial
advertising on outdoor signs, and the city adopted new ordinances to comply
with the law set forth in the court's opinion.
The Court of Appeal reversed the judgment as to a sign which came within
the purview of the California Outdoor Advertising Act (Business and Professions
Code Section 5200 et seq.), holding that the corporation was entitled to
compensation for its removal; affirmed the judgment enjoining the corporation
from maintaining its nonconforming signs and order their removal; and held
that the city's comprehensive zoning ordinance, as amended by the new ordinances,
was partially preempted by the Outdoor Advertising Act and was to that extent
invalid. The court also held that the required removal of the corporation's
signs was not a "taking" without just compensation in violation
of the U.S. Constitution, 5th Amendment (subject to the provisions of the
act relating to removal of signs near federal highways). (City of Salinas
v. Ryan Outdoor Advertising, Inc., (1987) 189 Cal.App.3d 416)
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PETS IN PUBLIC RENTAL HOUSING FOR THE ELDERLY
Notwithstanding any other provision of law, no public agency which owns
and operates rental housing accommodations, shall prohibit the keeping of
not more than two pets by the elderly in such rental housing accomodations.
For the purposes of this section:
(a) "Person requiring supportive services" means a person as defined
in Section 50685.5
(b) "Elderly" means any person over the age of 60.
(c) "Pet" means a domesticated dog, cat, bird, or aquarium.
(d) "Public" means state, county city, city and county, district,
or other political subdivision of the state.
Nothing in this section shall prevent the local housing authority from requiring
the removal from any housing of any pet whose conduct or condition is duly
determined to constitute a threat or nuisance to the other occupants of
the housing. No pet may be kept in violation of humane or health laws. Nothing
in this section authorizes a local housing authority to impose any requirement
which makes the keeping of a pet by an elderly person or person requiring
supportive services financially prohibitive.
The local housing authority shall not be liable for personal or property
damages caused by any pet in the rental housing accomodation, except upon
proof or prior actual knowledge on of its agents or employees of a dangerous
propensity of the pet or hazardous condition created by the pet.
Nothing in this section shall prevent the local housing authority from adopting
reasonable regulations relating to any such pets; prevent the adoption of
differing terms for the tenancy which are reasonably related to the presence
of such pet; or relieve a tenant from any liability otherwise imposed by
law for damages caused by such pet when proof of same exists.
The adoption of any regulations pursuant to this section, or the application
of any regulation adopted pursuant to this section, may be appealed by an
elderly resident or elderly applicant in accordance with the grievance procedure
of the local housing authority established to resolve tenant disputes. A
copy of the grievance procedures shall be provided to a elderly tenant or
elderly applicant who keeps a pet.
HEALTH & SAFETY CODE SECTION 19901
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POLLUTION
Abatement of Pollution as a Public Nuisance
The State of Illinois sued the City of Milwaukee in the U.S. Supreme Court
to abate the pollution of Lake Michigan for which the City of Milwaukee
and other Wisconsin cities allegedly were responsible. The Supreme Court
ruled that the federal common law of nuisance would govern, but declined
original jurisdiction and remanded the case to federal district court. Illinois
then sued in U.S. District Court, claiming that the pollution was a public
nuisance under federal law, a public nuisance under Illinois common law,
and a violation of Illinois statutory environmental law. (Illinois v.
City of Milwaukee, (1972) 406 U.S. 91; Hite, 60 Tulane Law Review 407-411)
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PSYCHIATRIC CARE FACILITIES
In a 1982 case a city zoning ordinance contained overlapping definitions
of hospitals, convalescent homes, and rest homes. Further, it allowed rest
homes and convalescent homes in R-2 zones with conditional use permits.
However, under Welfare and Institutions Code Section 5120, mental health
facilities are allowed in the same zone, R-2 in this case, that would allow
rest homes and convalescent homes. (City of Torrance v. Transitional
Living Centers for Los Angeles, Inc. (1982) 30 Cal.3d 516)
It is the policy of this state as declared and established in this act and
in the Lanterman-Petris-Short Act that the care and treatment of mental
patients be provided in the local community. In order to achieve uniform
statewide implementation of the policies of this act, it is necessary to
establish the statewide policy that, notwithstanding any other provision
of law, no city or county shall discriminate in the enactment, enforcement,
or administration of any zoning laws, ordinances, or rules and regulations
between the use of property for the treatment of general hospital or nursing
home patients and the use of property for the psychiatric care and treatment
of patients, both inpatient and outpatient.
Health facilities for inpatient and outpatient psychiatric care and treatment
shall be permitted in any area zoned for hospitals or nursing homes, or
in which hospitals and nursing homes are permitted by conditional use permit.
WELFARE & INSTITUTIONS CODE SECTION 5120
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PUBLIC CAPITAL FACILITIES
Cemeteries
Local zoning authorities may not justify the exclusion or restriction of
cemeteries on purely aesthetic grounds or where the circumstances indicate
that establishment and operation of the cemetery will not adversely affect
the public health or safety. (Abbey Land & Improvement Co. v. County
of San Mateo (1914) 167 Cal.434; Longtin, p. 312)
Jails
California case law has not addressed the issue of state preemption of jails.
In Kentucky, however, a county is immune from local zoning regulations in
establishing a jail. The county is an instrumentality of the state and is
thus immune from complying with zoning regulations. The court stated that
cities and counties have the dual purpose of performing purely local functions
and of serving as arms of the state government in the administration of
various state functions. The court reasoned that the county is complying
with the legislative mandate that it provide for the incarceration of prisoners
and that it does not matter that the county participated in a joint city-county
planning commission and the adoption of a comprehensive plan for the county,
the city, and several other cities. (Edelen v. County of Nelson (Kentucky
Ct. App. Feb. 6 1987) 728 S.W.2d 887; Land Use Law, November, 1987, pp.
14-15)
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PUBLIC HEARING, MEETING BROADCASTING
& TELECASTING
Radio and television stations shall be permitted to broadcast and telecast,
either directly or by means of transcriptions and film, the proceedings
of all meetings and hearings, other than adjudicative proceedings conducted
pursuant to Chapter 5 (commencing with Section 11500) of Part 1 of Division
3 of Title 2 of the Government Code, of all state, county, and municipal
administrative agencies that are required by law to be open to the public,
provided that cameras and other equipment used at the meeting or hearing
must operate silently and not require auxiliary lighting.
Any such agency may waive the provisions requiring silent operation of the
cameras and other equipment or excluding auxilary lighting for such cameras
and other equipment.
The chairman or presiding officer of the agency may require pooling of equipment
when he deems it necessary to limit the number of pieces of equipment for
the orderly conduct of the meeting.
Meetings of, or hearings by, administrative agencies to consider the appointment,
employment or dismissal of public officer or employee or to hear appeals
by or complaints or charges brought against such officer or employee shall
not be subject to the provisions of this chapter.
GOVERNMENT CODE SECTION 6091
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PUBLIC UTILITIES
. . . 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 at less than 100,000 volts. Zoning ordinances
of a city or county 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
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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