RADIO COMMUNICATIONS
Amateur Radio Stations; Ham Radio Antennas
On September 19, 1985, the Federal Communications Commission (FCC) released
notification of an adopted 'limited preemption' of local regulations that
affect amateur radio operators (Federal Preemption of State and Local Regulations
Pertaining to Amateur Radio Facilities: 50 Fed.Reg. 38813, 38816 (1985)).
Local land use regulations of amateur communications involving height, placement,
screening, or height "of antennas based on health, safety, or aesthetic
considerations must be crafted to accommodate reasonably amateur communications
and to represent the minimum practicable regulation to accomplish the local
authority's legitimate purpose. . . We will not, however, specify any particular
height limitation below which a local government may not regulate, nor will
we suggest the precise language that must be contained in local ordinances,
such as mechanisms for special exceptions, variances, or conditional use
permits." (Land Use Law, April 1987, p. 4)
A U.S. District Court of Appeals upheld a city's denial of a licensed amateur
radio operator's building permit application for a radio tower totally prohibited
by local zoning. But, on appeal, the U.S. Court of Appeals overturned that
court's decision by remanding it to the lower court in light of the FCC's
preemption order. The court found that the city failed the two-pronged preemption
test in that (1) the city made no effort "to accommodate reasonably
amateur communications ..., and (2) the city's absolute prohibition can
hardly be characterized as "the minimum practicable regulation to accomplish
the local authority's legitimate purpose." (Thernes v. City of Lakeside
Park (6th Cir. 1986) 779 F.2d 1187)
Subsequently, another U.S. Court of Appeals also remanded a case to a district
court. In this instance, the court of appeals found that the district court
had improperly abstained from ruling on an amateur radio operator's challenge
to a local ordinance that prevented him from constructing a 40-foot transmission
tower. The tower would have exceeded the zoning ordinance's 35-foot local
limit. The court ruled that "the mere existence of land use regulations
will not automatically mandate federal court abstention." Acknowledging
the Thernes decision, the court noted the FCC order's "intent to apply
a limited, rather than a total preemption." (Izzo v. Borough of
River Edge (3rd Cir. 1988) 843 F.2d 765)
A 1987 case underscores the limited nature of the FCC preemption. The decision
held that FCC regulations do not necessarily preempt an ordinance that restricts
radio antenna heights, noting that the FCC's rule does not completely preempt
local regulations. Though the particular ordinance was not invalid on its
face, it was found invalid as applied to an applicant seeking a conditional
use permit for a 70-foot tower, "when the city did not reasonably accommodate
the needs of (the) applicant." (Bulchris v. City of Edmonds,
U.S. District Court, W.D. Washington [trial court], (October 13, 1987) 671
F.Supp.1270; Land Use Law, April 1989, p. 26)
A recent law journal article offers a thorough discussion of the issue of
balancing state and federal interests where the FCC ruling is concerned.
("Federal Preemption of Amateur Radio Antenna Height Regulation: Should
the Sky be the Limit?" (9 Cardozo Law Review 1501, Vol. 9, No.
8, April 1988) The article presents a cogent argument that the FCC's preemption
order "is not ideal because it makes the FCC a national zoning board,
a function better left to the states." (supra., p. 1519) Further, it
raises the question "how a hobby can possibly preempt important state
interests". (supra. p. 1519)
Cellular Radiotelephone Facilities
The California Public Utilities Commission is authorized to grant Certificates
of Public Convenience and Necessity (CPCN) for cellular radiotelephone facility
construction. Previous commission decisions have stated that no additional
local government permits are needed as a condition of the CPCN. On June
20, 1988 Public Utilities Commission's Advisory and Compliance Division
issued a letter to all local planning directors in the state advising them
that the Commission is the sole permitting authority for cellular radiotelephone
systems. Nevertheless, the Commission also indicated that it wishes to cooperate
with local agencies to assure that construction follows local building standards,
even if local agencies lack the authority to issue a permit. To this end,
the Commission is instructing cellular radiotelephone applicants to pursue
the local regulatory and permit process despite the local permit's lack
of legal force.
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RAILROADS
Train Speed Limits
A city's ordinance regulating the speeds at which trains could travel within
city limits was preempted by the Federal Railroad Safety Act and was void
under the supremacy clause. (Chesapeake and Ohio Railway Company v. City
of Bridgman, (W.D.Mich. 1987) 669 F.Supp. 823; Municipal Law, January
1988, p. 15)
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RAPID TRANSIT DISTRICTS
The California Court of Appeal ruled that the Southern California Rapid
Transportation District is exempt from local zoning regulations, noting
that Public Utility Code section 30100's language makes the district an
agency of the state, or a regional governmental body with statewide concerns,
"with virtual autonomy in self-governance, limited only by the regulations
of the Public Utilities Commission." (Rapid Transit Advocates, Inc.
v. Southern California Rapid Transit District (1986) 185 Cal.App.3d
996)
Return to Index
RENT CONTROL
Rent Ceilings
The Sherman Antitrust Act does not preempt rent ceilings imposed by a rent
control ordinance when they are not imposed by separate entities but are
instead imposed unilaterally by the municipality. (Fisher v. City of
Berkeley, (U.S. Feb. 26, 1986) 54 U.S.L.W. 4222; Land Use Law,
vol. 38, no. 7, July 1986, p. 7)
Rent Increase Notification Ordinance
The California Court of Appeal held that state law preempts a city's rent
increase notification ordinance wherein the city required at least 60 days'
written notice to tenants of rent increases. The court found that even though
cities may enact various types of rent control that would pass broad constitutional
muster, and even though statutes must be interpreted in the context that
would promote rather than defeat their objectives, the ordinance definitely
dealt with the time of notification and not with rent control. (Tri County
Apartment Association v. City of Mountain View, (1987) 196 Cal.App.3d
1283; Municipal Law, March, 1988, p. 43.)
Tenant Eviction
The California Court of Appeal held that the Ellis Act, Government Code
Section 7060 et seq., preempts portions of the Santa Monica City Charter
which prohibit eviction of tenants for the purpose of demolishing or otherwise
removing controlled rental units from rental residential housing use absent
proper permits, and prohibiting removal of rental units from the housing
market by conversion, demolition, or other means without obtaining a permit
from the Santa Monica Rent Control Board. The purpose of the Ellis Act is
to allow landlords who comply with its terms to go out of the residential
rental business by evicting their tenants and withdrawing all units from
the market, even if the landlords could make a fair return, the property
is habitable, and the landlords lack approval for future use of the land.
(City of Santa Monica v. Henry Yarmark (1988) 203 Cal.App.3d 153)
Return to Index
RESIDENTIAL
Adults Only Residential Projects -- Age Discrimination
The Unruh Civil Rights Act (Civil Code Section 51 et seq.) provides that
all persons within the jurisdiction of the state are entitled to the full
and equal accommodations in all business establishments and prohibits age
discrimination in all housing, except for housing designed to meet the special
physical and social needs of senior citizens. (Civil Code Section 51.2)
The California Supreme Court has held that the Unruh Civil Rights Act prohibits
arbitrary discrimination such as the blanket exclusion of children from
an ordinary apartment or condominium complex. (Marina Point, Ltd. v.
Wolfson (1982) 30 Cal.3d 721; O'Connor v. Village Green Owners Association
(1983) 33 Cal.3d 790)
The California Court of Appeal has ruled that a rental policy that discriminates
between "children in esse" and "children in utero, or contemplation"
violates a city anti-discrimination ordinance. The court also ruled that
it was unnecessary to determine whether the policy violated the Unruh Act,
invaded privacy rights, or discriminated against minorities because they
tend to have larger families. (Smith v. Ring Bros. Management Corp.
(1983) 183 Cal.App.3d 649; Longtin, p. 303)
Common Interest Developments
Local zoning must treat like development in a like manner regardless whether
the development is a community apartment, condominium, planned development,
or stock cooperative, pursuant to Civil Code Section 1372.
Condominium Conversion Regulations
Contrary to commonly held beliefs, condominium conversion regulations are
not preempted by the California Subdivision Map Act and a constitute a legitimate
exercise of a city's police power. (Griffin Development Co. v. City of Oxnard
(1985) 39 Cal.3d 256; Santa Monica Pines, Ltd. v. Rent Control Board (1984)
35 Cal.3d 858)
Homes for the Elderly, Handicapped, or Mentally Disabled
(See SOCIAL AND HUMAN SERVICES)
Housing Projects in General
A state public body may: (a) plan or replan, zone or rezone any part of
its territory and (b) make exceptions to building regulations and ordinances
as long as the exemptions don't conflict with State Housing Law provisions.
HEALTH & SAFETY CODE SECTION 34513.
Labor Camps
Buildings used for human habitation, and buildings accessory thereto, within
a labor camp shall comply with the building standards published in the State
Building Standards Code relating to labor camps and with the other regulations
adopted pursuant to this part, unless a local ordinance prescribing minimum
standards adopted in accordance with Sections 17958.5 and 17958.7 which
is equal to such regulations is applicable. Notwithstanding the provisions
of Section 17050, if such a local ordinance is applicable to buildings used
for human habitation, and buildings accessory thereto, within a labor camp,
such buildings shall comply with the construction and erection provisions
of the ordinance.
HEALTH & SAFETY CODE SECTION 17001
Except as otherwise provided in this part, the provisions of this part,
building standards published in the State Building Standards Code relating
to labor camps, and the other rules and regulations promulgated pursuant
to the provisons of this part which relate to labor camps apply in all parts
of the state and supersede any ordinance or regulations enacted by any city,
county, or city and county applicable to labor camps. Rules and regulations
adopted or continued in effect prior to January 1, 1980, by former Chapter
4 (commencing with Section 2610) of Part 9 of Division 2 of the Labor Code
are hereby continued in effect as rules and regulations under this part
until amended or repealed by the Department of Housing and Community Development.
Building standards as defined by Section 18909 shall remain in effect only
until January 1, 1985, or until adopted, amended, or superseded by provisions
published in the State Building Standards Code relating to labor camps pursuant
to the provisions of Chapter 4 (commencing with Section 18935) or Part 2.5,
whichever occurs sooner.
HEALTH & SAFETY CODE SAFETY CODE SECTION 17020
Mobilehome Parks -- Adults Only Mobilehome Parks
The antidiscrimination mandates of the Unruh Civil Rights Act (Civil Code
Section 51 et seq.) do not prevail over Civil Code Section 798.76. Civil
Code Section 798.76 provides that mobilehome park management may enforce
adults only restrictions. It is a legislative exception to Civil Code Section
51, and the California Court of Appeal found that there is no support for
the contention that the adults only language of Section 798.76 must be construed
to apply to senior citizens only. The court upheld the superior court's
ruling that adults only restrictions in mobilehome parks do not violate
the Unruh Civil Rights Act or the state and federal Constitutions. (Rosales
v. Huntington-By-The-Sea Mobilehome Park (1987) 193 Cal.App.3d 1388)
Mobilehome Park Conversions
The imposition of fees as a condition of approval for mobilehome park conversions
is prohibited and thus exempt from local ordinances.
GOVERNMENT CODE SECTION 66451.6
Mobilehome Park Finance and Leasing
The creation of a parcel for the purpose of financing or leasing a mobilehome
park is exempt from the Subdivision Map Act.
GOVERNMENT CODE SECTION 66412(A)
Mobilehome Park Rent Control Ordinances
The Mobilehome Park Residency Law exempts certain rented mobilehome spaces
from local rent control ordinances.
CIVIL CODE SECTION 798.17
Mobilehome Parks in Single-Family Residential Zones
Mobilehome parks cannot be excluded from land zoned for residential land
use or designated as such in a local general plan. Nevertheless, local governments
retain the authority to require a use permits for them, pursuant to Government
Code Section 65852.7.
Any person may file an application with the governing body of any city,
city and county, or county for a conditional use permit for a manufactured
home, mobilehome, or mobilehome park. The governing body, or the planning
commission if designated by the governing body, shall hold a public hearing
on any such application. Notice of the time and place of the hearing, including
a general description of the area affected, shall be given at least two
weeks before the hearing and shall be published at least once in a newspaper
of general circulation, published and circulated in the city, city and county,
or county, as the case may be. When any hearing is held on an application
for a conditional use permit for a conditional use permit for a manufactured
home, mobilehome, or mobilehome park, a staff report with recommendations
and the basis for such recommendations shall be included in the record of
the hearing. The decision of the governing body shall be final and the reasons
for the decision shall be included in the record.
HEALTH & SAFETY CODE SECTION 18300.1
Mobilehomes on Lots Zoned for Single-family Residential Uses
Cities and counties have been prohibited from excluding mobile homes on
lots zoned for single-family dwellings. A 1988 law now prohibits cities
and counties from subjecting manufactured housing applicants to a development
process which differs from the process imposed on conventional single-family
residential development. However, the local government may require the applicant
to comply with local architectural requirements even if such requirements
are not required of conventional single-family dwellings.
GOVERNMENT CODE SECTION 65852.3 AND 65852.4
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SATELLITE COMMUNICATIONS FACILITIES
Satellite Dishes (Satellite Television Receiving Antennas, Satellite Television
Receive-Only (TVRO) Earth Stations)
A February 14, 1986 Federal Communications Commission (FCC) order concluded
that it had the power to preempt local satellite antenna regulations which
unduly interfere with national objectives. The commission noted section
1 of the Communications Act's broad mandate to make communication services
available to all people of the United States (47 U.S.C. Sec. 151 (1982)).
Further, Section 705 creates certain rights to receive unscrambled and unmarketed
satellite signals. The FCC order provides:
"State and local zoning or other regulations that differentiate between
satellite facilities are preempted unless such regulations:
(a) Have a reasonable and clearly defined health, safety, or aesthetic objective;
and,
(b) Do not operate to impose unreasonable limitations on, or prevent, reception
of satellite-delivered signals by receive-only antennas or to impose costs
on the users of such antennas that are excessive in light of the purchase
and installation cost of the equipment." (47 CFR Sec. 25.104; 51 Fed.
Reg. 5519)
Therefore, if a community chooses to enact an ordinance which differentiates
between types of antennas, the ordinance is preempted unless it meets both
paragraphs (a) and (b) of section 25. 104 (51 Fed.Reg. pp. 5523-5524). Nevertheless,
local governments may still impose reasonable conditions on all types of
antennas provided that they apply these standards uniformly and do not discriminate
against receive-only facilities. The FCC warns that a ban based on size
or shape, such as a ban on all spherical antennas, would differentiate between
satellite antennas and other types and would therefore be preempted under
the rule. (1987 Zoning and Planning Law Handbook, Clark Boardman
Co., Ltd., pp. 10-11)
With respect to paragraph (a) of section 25.104, the FCC declared, "We
have retained the use of health, safety and aesthetic objectives but have
merely required these to be 'reasonable' and 'clearly defined' These terms
are readily susceptible to application by local authorities and give some
flexibility in the application of local regulations to individual locations.
To be more specific in a general national policy statement would be inadvisable."
(supra., p. 5524)
Conceding that communities may enact reasonable screening and placement
standards in order to make satellite television receiving antenna installations
aesthetically acceptable, the FCC notes, however, that such standards must
be "clearly defined" and "reasonable" under 47 CFR sections
25.104(a) and (b) to avoid undue infringement of an antenna owner's federally
protected right to receive satellite television signals.
The 'clearly defined' and 'reasonable' requirements figured heavily in a
recent California Court of Appeal decision. The decision upheld a lower
court's issuance of an injunction to restrain the city from enforcing its
ordinance regulating satellite television receiving antennas in residential
zones. The ordinance requires property owners to obtain a conditional use
permit, but in this case the property owner did not comply with its conditions.
The city's conditions required that the antenna be reduced in height to
15 feet above the ground and that it be screened from view of the street
or surrounding properties. The property owner successfully attacked the
ordinance and the use permit's conditions. The court found that the local
ordinance per se did not enact specific screening or placement requirements
for satellite antennas, and that the city's conditions of approval were
determined on an ad hoc basis by the zoning administrator. (Hunter v.
City of Whittier (April, 1989) 209 Cal.App.3d 588)
However, a preceding case illustrates the limited nature of the FCC's preemption.
"A setback ordinance requiring a landowner to place his satellite dish
at least 75 feet from a river is not violative of the owner's free speech
right to receive satellite communications. The right to receive information
is a component of the concept of free speech, but this right is not absolute.
The ordinance in question survived the dish owner's constitutional attack
since it was substantially related to the promotion of the town's interest
in preserving areas from development for the aesthetic welfare of the community"
(Brophy v. Town of Castine, Maine. (1987) 534 A.2d 663; Zoning
and Planning Law Report, Vol. 11, No. 4, (April, 1988), p. 31)
Satellite Master Television Systems ("SMATV")
SMATV systems provide video programming to residents of multi-family housing.
Systems generally consist of a master television antenna for the reception
of local broadcast signals and a television receive-only earth station that
is used to receive satellite delivered premium programming services, such
as HBO. The signals from the the two antennas are combined and distributed
through cabling to residents in the housing structure. A Federal Communications
Commission order and declaratory ruling expressly preempted all "state
and local regulation of SMATV systems that have the effect of interfering
with, delaying, or terminating interstate and federally controlled communications
systems." (Earth Satellite Communications 95 FCC2d 1223 (1983),
recon. denied, FCC 84-206, released May 14, 1984) The FCC reasoned that
such state and local regulations were inconsistent with its own efforts
to promote the unfettered development of interstate satellite communications.
(99 FCC2d, pp. 1230-31)
Although the FCC did not focus on land use issues, its preemption language,
quoted above, is broad enough to reach any zoning regulation that could
interfere with the construction of SMATV facilities. Perhaps recognizing
that the record before it did not provide a great deal of information regarding
the impact of local land use regulations on the development of SMATV systems,
the FCC stated:
"We do not wish to preclude a state or locality from exercising jurisdiction
over certain elements of an SMATV operation that properly may fall within
its authority, such as zoning or public safety and health, provided the
regulation in question is not undertaken as a pretext for the actual purpose
of frustrating achievement of the preeminent federal objective and so long
as the nonfederal regulation is applied in a nondiscriminatory manner."
While it is safe to assume that the FCC would not permit a locality to use
zoning laws to restrict SMATV for the sole purpose of protecting the flow
of cable franchise fees, it remains to be seen what land use restrictions
can be imposed upon SMATV systems without frustrating the FCC's goal of
developing an interstate satellite communications system. No reported case
at the FCC or in the courts since the SMATV preemption decision has addressed
what local land use restrictions on SMATV systems are valid. (Land Use
Law, April, 1987, pp. 3-4)
Satellite Transmitting Antennas
Regulation of satellite transmitting antennas is preempted in the same manner,
except that state and local health and safety regulation is not preempted.
(47 CFR sec. 25.104)
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SCHOOL IMPACT FEES
The Legislature has declared the subject of using development fees to finance
school facilities a matter of statewide concern, it has not completely occupied
the field. Except for dedications, fees, or other requirements levied under
the School Facilities Act (Government Code section 65970 et seq.) or Government
Code section 53080, local governments may not levy such fees against a development
project to build or rebuild school facilities. (Government Code Section
65995(d) However, local governments are not preempted from imposing school
impact fees on developers to finance permanent school facilities under the
School Facilities Act, as long as the fees imposed do not deny developers
equal protection. (Candid Enterprises, Inc. v. Grossmont Union School
District (1985) 39 Cal.3d 878) In this decision, the court found that
the School Facilities Act is "supplementary to, not preemptive of local
action." (Candid, p. 890)
Local agencies may adopt additional school facility fees when they are clearly
shown to be related to the specific impacts of development. Possible funding
sources are not limited to the Mello-Roos Community Facilities Act, Leroy
Greene School Facilties Act, and the New Schools Relief Act.
Return to Index
SOCIAL AND HUMAN SERVICES
Child Day Care Facilities
"Child" is defined as a person who is under 18 years of age who
is being provided care and supervision in a child day care facility, except
where otherwise specified in this act. Health & Safety Code Section
1596.75.
"Child day care facility" means a facility which provides nonmedical
care to children under 18 years of age in need of personal services, supervision,
or assistance essential for sustaining the activities of daily living or
for the protection of the individual on less than a 24-hour basis. Child
day care facility includes day care centers and family day care homes.
HEALTH & SAFETY CODE SECTION 1596.750
"Day care center" means any child day care facility other than
a family day care home, includes infant centers, preschools, and extended
day care facilities.
HEALTH & SAFETY CODE SECTION 1596.76
Community Care Facilities
Health & Safety Code Section 1502 defines a community care facility
as any facility maintained and operated to provide non-medical residential
care, day-care, or home finding agency services for children or adults,
including, but not limited to the elderly, foster family homes, the physically
handicapped, mentally impaired, or incompetent persons.
Whether or not unrelated persons are living together, a residential 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, a residential 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 residential
facility is a business run for profit or differs in any other way from a
family dwelling.
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 a residential facility which serves
six or fewer persons as long as such restrictions are identical to those
applied to other family dwellings of the same type in the same zone.
This section shall not be construed to forbid the application to a residential
care 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 if the ordinance does not
distinguish residential care facilities which serve six or fewer persons
from other family dwellings of the same type in the same zone; and if the
ordinance does not distinguish resident for the residential care facilities
from persons who reside in other family dwellings of the same type in the
same zone.
No conditional use permit, zoning variance, or other zoning clearance shall
be required of a residential facility which serves six or fewer persons
which is not required of a family dwelling of the same type in the same
zone.
Use of a family dwelling for purposes of a residential 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 such sections are applicable to residential
facilities providing care for six or fewer residents.
For the purposes of this section, "family dwelling," includes,
but is not limited to, single-family dwellings, units in multifamily dwellings,
including units in duplexes and units in apartment dwellings, mobilehomes,
including mobilehomes located in mobilehome parks, units in townhouses,
and units in planned unit developments.
HEALTH & SAFETY CODE SECTION 1566.3
Community Care Facilities For Wards of the Juvenile Court
Health & Safety Code Sections 1567-1567.9 place restrictions on local
regulations on facilities for wards of the juvenile courts.
It is further the intent of the Legislature that, where city or county zoning
restrictions unreasonably impair the ability of a county to serve the needs
of its residents who are wards of the juvenile court, the removal of these
restrictions is hereby encouraged and is a matter of high state interest.
HEALTH & SAFETY CODE SECTION 1567.1
Family Day Care Homes
State legislation provides for family day-care homes for children to be
situated in normal residential surroundings so as to give children a home
environment which is conducive to healthy and safe development, similar
to a traditional home setting. (Health & Safety Code Section 1597.30)
Under these provisions, the legislature has preempted the field to the exclusion
of municipal zoning, building and fire codes government the use and occupancy
of family day-care homes for children, and has prohibited any restrictions
relating to the use of single family residences for family day-care homes,
except as specifically provided in the legislation. (Health & Safety
Code Section 1597.40(a)). The legislation divides family day-care homes
into "small" (six or fewer children) and "large" (7
to 12 children) homes. Small homes are considered a residential use of property
for the purposes of all local zoning ordinances. (Health & Safety Code
Section 1597.45) Large homes are permitted in residential zones but a conditional
use permit may be required in the R-1 single-family zone. Also, a city may
require a non-discretionary permit under ordinances prescribing reasonable
requirements concerning spacing and concentration, traffic control, parking,
noise control and any regulations adopted by the State Fire Marshal. (Health
& Safety Code Section 1597.46; Longtin, p. 311).
"Family day care home" means a home which regularly provides care,
protection, and supervision of 12 or fewer children, in the provider's own
home, for periods of less than 24 hours per day, while the parents or guardians
are away, and includes the following:
(1) "Large family day care home" which means a home which provides
family day care to 7 to 12 children, inclusive, including children who reside
at the home, as defined in regulations.
(2) "Small family day care home" which means a home which provides
family day care to six or fewer children, including children who reside
at the home, as defined in regulations.
HEALTH & SAFETY CODE SECTION 1596.78
"Planning agency" means the agency designated pursuant to Section
65100 of the Government Code.
HEALTH & SAFETY CODE SECTION 1596.790
"Provider" means a person who operates a child care facility and
is licensed pursuant to Chapter 3.5 (commencing with Section 1596.90) or
Chapter 3.6 (commencing with Section 1597.30).
HEALTH & SAFETY CODE SECTION 1596.791
(a) It is the intent of the Legislature that family day care homes for children
must be situated in normal residential surroundings so as to give children
the home environment which is conducive to healthy and safe development.
It is the public policy of this state to provide children in a family day
care home the same home environment as provided in a traditional home setting.
The Legislature declares this policy to be of statewide concern with the
purpose of occupying the field to the exclusion of municipal zoning, building
and fire codes and regulations governing the use of occupancy of family
day care homes for children, except as specifically provide for in this
chapter, and to prohibit any restrictions relating to the use of single-family
residences for family day care homes for children except as provided by
this chapter.
WELFARE & INSTITUTIONS CODE SECTION 1597.40(A)
The provisions of this chapter shall not be construed to preclude any city,
county, or other local public entity from placing restrictions on building
heights, setback, or lot dimensions of a family day care facility as long
as such restrictions are identical to those applied to other single-family
residences. The provisions of this chapter shall not be construed to preclude
the application to a family day care facility for children 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. The provisions of this chapter also shall not be construed
to prohibit or restrict the abatement of nuisances by a city, county, or
city and county. However, such ordinance or nuisance abatement shall not
distinguish family day care facilities from other single-family dwelling,
except as otherwise provided in this chapter.
WELFARE & INSTITUTIONS CODE SECTION 1597.47
Homes or Facilities For Six or Fewer Mentally Disordered, Handicapped
Persons, or Dependent and Neglected Children
A city zoning ordinance which conflicts with Welfare & Institutions
Code Section 5116 is preempted and unenforceable. (City of Los Angeles
v. State Department of Health (1976) 63 Cal.App.3d 473) The Lanterman-Petris-Short
Act provides that health facilities for in-patient and out-patient 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. (Longtin, p. 309)
NOTE: In a related matter the U.S. Supreme Court struck down a local ordinance
in Texas that required a use permit for a group home for the mentally retarded,
but not for other group living facilities, was invalid as applied. The court
held there was no evidence revealing any rational basis for the classification
and, therefore, the use permit requirement violated equal protection. (City
of Cleburne v. Cleburne Living Center (1985) 105 S.Ct. 3249) This Supreme
Court action is not to be considered a preemption, however, but a 'normal'
high court invalidation of an unconstitutional ordinance that deprives someone,
or in this case, a group of persons, of equal protection under the law.
The Attorney General has rendered an opinionregarding the legislative intent
behind Welfare & Institutions Code Section 5116, which is to place family
care homes, group homes and foster homes on an equal footing with residential
dwellings with respect to the application of local zoning ordinances. Accordingly,
if in the granting of conditional use permits, the imposition of conditions
such as installation of curbs, gutters and sidewalks in residential areas
containing such facilities, does not contribute significantly to the health
and safety of the residents of the facilities, the imposition of the condition
is contrary to Welfare & Institutions Code Sections 5115 and 5116. On
the other hand, a city program requiring the installation of such improvements
in a residential area containing such home care facilities which states
that "no condition shall be imposed on such homes which are more restrictive
than those imposed on other similar dwellings in the same zones unless such
additional conditions are necessary to protect the health and safety of
the residents" does not violate Section 5116. The opinion also interprets
the terms "similar dwelling" and "residents" under the
act. (61 Ops.Cal.Atty.Gen. 490, 1978)
Pursuant to the policy stated in Section 5115, a state-authorized, certified,
or licensed family care home, foster home, or group home serving six or
fewer mentally disordered or otherwise handicapped persons or dependent
and neglected children, shall be considered a residential use of property
for the purposes of zoning if such homes provide care on a 24-hour-a-day
basis.
Such homes shall be a permitted use in all residential zones, including,
but not limited to, residential zones for single-family dwellings.
WELFARE & INSTITUTIONS CODE SECTION 5116
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 a conditional use
permit.
WELFARE AND INSTITUTIONS CODE SECTION 5120
Intermediate Care Facilities
(a) An intermediate care facility/developmentally disabled habilitative
or an intermediate care facility/developmentally disabled-nursing or a congregate
living health facility shall meet the same fire safety standards adopted
by the State Fire Marshal pursuant to Sections 13113, 13113.5, 13143, and
13143.6 that apply to community care facilities, as defined in Section 1502,
of similar size and with residents of similar age and ambulatory status.
No other state or local regulations relating to the safety shall apply to
these facilities and the requirements specified in this section shall be
uniformly enforced by state and local fire authorities.
(b) An intermediate care facility/developmentally disabled habilitative
or an intermediate care facility/developmentaly disabled-nursing or a congregate
living health facility shall meet the same seismic safety requirements applied
to residents of similar age and ambulatory status. No additional requirements
relating to seismic safety shall apply to such facilities.
(c) Whether or not unrelated persons are living together, an intermediate
care facility/developmentally disabled habilitative which serves six or
fewer persons or an intermediate care facility/developmentally disabled-nursing
which serves six or fewer persons or a congregate living health facility
shall be considered a residential use of property for the purposes of this
article. In addition, the residents and operators of the facility shall
be considered a family for the purposes of any law or zoning ordinance which
is related to the residential use of property pursuant to this article.
For the purposes of all local ordinances, an intermediate care facility/developmentally
disabled habilitative which serves six or fewer persons or an intermediate
care facility/developmentally disabled-nursing which serves six or fewer
persons or a congregate living health facility 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 intermediate care facility/developmentally disable-nursing
or a congregate living health facility is a business run for profit or differs
in any other way from a single-family residence.
This section does not forbid any city, county, or other local public entity
from placing restrictions on building heights, setback, lot dimensions,
or placement of signs of an intermediate care facility/developmentally disabled
habilitative which serves six or fewer persons or an intermediate care facility/developmentally
disabled-nursing which serves six or fewer persons or a congregate living
health facility as long as such restrictions are identical to those applied
to other single-family residences.
This section does not forbid the application to an intermediate care facility/developmentally
disabled habilitative or an intermediate care facility/developmentally disabled-nursing
or a congregate living health 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, as
long as that ordinance does not distinguish intermediate care facility/developmentally
disabled habilitative which serves six or fewer persons or an intermediate
care facility/developmentally disabled-nursing or a congregate living health
facility from other single-family dwellings and that the ordinance does
not distinguish residents of the intermediate care facility/developmentally
disabled habilitative or intermediate care facility/developmentally disabled-nursing
which serves six or fewer persons or a congregate living health facility
from persons who reside in other single-family dwellings.
No conditional use permit, zoning variance, or other zoning clearance shall
be required of an intermediate care facility/developmentally disabled habilitative
which serves six or fewer persons or an intermediate care facility/developmentally
disabled-nursing which serves six or fewer persons or a congregate living
health facility which is not required of a single-family residence in the
same zone.
Use of a single-family dwelling for purposes of an intermediate care facility/developmentally
disabled habilitative serving six or fewer persons or an intermediate care
facility/developmentally disabled-nursing which serves six or fewer persons
or a congregate living health facility 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 supersedes
Section 13143 to the extent these provisions are applicable to intermediate
care facility/developmentally disabled habilitative providing care for six
or fewer residents or an intermediate care facility/developmentally disabled-nursing
serving six or fewer persons or a congregate living health facility.
HEALTH & SAFETY CODE SECTION 1267.8
Large Family Day Care Homes
All of the following shall apply to large family day care homes:
(a) A city, county, or city and county shall not prohibit large family day
care homes on lots zoned for single-family dwellings, but shall do one of
the following:
(1) Classify these homes as a permitted use of residential property for
zoning purposes.
(2) Grant a nondiscretionary permit to use a lot zoned for a single-family
dwelling to any large family day care home that complies with local ordinances
prescribing reasonable standards, restrictions, and requirements concerning
spacing and concentration, traffic control, parking, and noise control relating
to such homes, and complies with subdivision (d) and any regulations adopts
by the State Fire Marshal pursuant to that subdivision. Any noise standards
shall be consistent with local noise ordinances implementing the noise element
of the general plan and shall take into consideration the noise level generated
by children. The permit issued pursuant to this paragraph shall be granted
by the zoning administrator, if any, or if there is no zoning administrator
by the person or persons designated by the planning agency to grant such
permits upon the certification without a hearing.
(3) Require any large family day care home to apply for a permit to use
a lot zoned for single-family dwellings. The zoning administrator, if any,
or if there is no zoning administrator, the person or persons designated
by the planning agency to handle the use permits shall review and decide
the applications. The use permit shall be granted if the large family day
care home complies with local ordinances, if nay, prescribing reasonable
standards, restrictions, and requirements concerning spacing and noise control
relating to such homes, and complies with subdivision (d) and any regulations
adopted by the State Fire Marshal pursuant to that subdivision. Any noise
standards shall be consistent with local noise ordinances implementing the
noise element of the general plan and shall take into consideration the
noise levels generated by children. The local government shall process any
required permit as economically as possible, and fees charged for review
shall not exceed the costs of the review andy permit process. Not less than
10 days prior to the date on which the decision will be made on the application,
the zoning administrator or person designated to handle such use permits
shall give notice of the proposed use by mail or delivery to all owners
who on the last equalized assessment role as owning real property within
a 100 foot radius of the exterior boundaries of the proposed large family
day care home. No hearing on the application for a permit issued pursuant
to this paragraph shall be held before a decision is made unless a hearing
is requested by the applicant or other affected persons may appeal the decision.
The appellant shall pay the cost, if any of the appeal.
HEALTH AND SAFETY CODE SECTION 1597.46
Residential Care Facilities (for elderly persons)
State licensed residential care facilities for six or fewer elderly persons
are considered residential uses, and its residents and facility operators
are to be considered a family for purposes of local zoning ordinances relating
to the residential use of property. Further, such facilities are not to
be defined as boarding houses, rooming houses, institutions or homes for
the care of the aged, guest homes, rest homes, sanitariums, mental hygiene
homes, and are not to have other similar terms applied to them which imply
that they are businesses run for profit or differ in any other way from
a family dwelling.
Whether or not unrelated persons are living together, a residential care
facility for the elderly 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 the facility shall be considered a family
for the purpose 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, a residential care facility for
the elderly 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 the aged, guest homes, rest home, sanitarium, mental hygiene
home, or other similar term which implies that the residential care facility
for the elderly is a business run for profit or differs in any other way
from a family dwelling.
This section shall not be construed to forbid any city, county, or other
local public entity from placing restrictions on building sites, setback,
lot dimensions, or placement of signs of a residential care facility for
the elderly which serves six or fewer persons as long as the restrictions
are identical to those applied to other family dwellings of the same type
in the same zone.
This section shall not be construed to forbid the application to a residential
care facility for the elderly 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 if the ordinance
does not distinguish residential care facilities for the elderly which serve
six or fewer persons from other family dwellings of the same type in the
same zone; and if the ordinance does not distinguish residents of the residential
care facilities for the elderly from persons who reside in other family
dwellings of the same type in the same zone.
No conditional use permit, zoning variance, or other zoning clearance shall
be required of the residential care facility for the elderly which serves
six or fewer persons which is not required of a family dwelling of the same
type in the same zone.
Use of a family dwelling for purposes of a residential care facility for
the elderly 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 these sections are applicable
to residential care facilities for the elderly providing care for six or
fewer residents.
For the purposes of this section, "family dwelling," includes,
but is not limited to, single-family dwellings, units in multifamily dwellings,
including units in duplexes and units in apartment dwellings, mobilehomes,
including mobilehomes located in mobilehome parks, units in cooperatives,
units in condominiums, units in townhouses, and units in planned unit developments.
HEALTH & SAFETY CODE SECTION 1569.85
No fire inspection clearance or other permit, license, clearance, or similar
authorization shall be denied to a residential care facility for the elderly
because of a failure to comply with local ordinances from which the facilities
are exempt under Section 1569.85, provided that the applicant otherwise
qualifies for the fire clearance, license, permit, or similar authorization.
HEALTH & SAFETY CODE SECTION 1569.86.
Small Family Day Care Homes
All of the following shall apply to small family day care homes:
(a) The use of single-family residence as a small family day care home shall
be considered a residential use of property for the purposes of all local
ordinances.
(b) No local jurisdiction shall impose any business license, fee, or tax
for the privilege of operating a small family day care home.
(c) Use of single-family dwelling for purposes of a small family day car
home shall not constitute a change of occupancy for purposes of Part 1.5
(commencing with Section 17910) of Division 13 (State Housing Law) or for
purposes of local building codes.
(d) A small family day care home shall not be subject to the provisions
of Article 1 (commencing with Section 13100) or Article 2 (commencing with
Section 13140) of Chapter 1 of Part 2, except that a small family day care
home shall contain a fire extinguisher or smoke detector device, or both,
which meets standards established by the State Fire Marshal.
HEALTH AND SAFETY CODE SECTION 1597.45
Return to Index
Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-445-0613