The process of preparing, adopting, and amending a specific plan is generally the same as that for a general plan (§65350-§65358). In addition, the specific plan statutes allow for exceptions and additional procedures (§65453, §65454, and §65456).
Upon completion of the draft specific plan, the planning department staff will prepare reports to the planning commission and the legislative body. The reports will describe the contents of the plan, provide a recommendation for approval or denial, related findings (for the purposes of the CEQA and/or general plan consistency), and possibly a resolution for adoption. The report will normally include an analysis of the project's effect on the environment pursuant to the CEQA. If it has not occurred previously, staff will include recommendations for the certification of the environmental determination or document. Any proposed changes to the general plan or the zoning ordinance related to adoption and implementation of the specific plan should be presented at the same time.
Hearing and Notice:
The planning commission must hold at least one public hearing pursuant to §65353 prior to forwarding its recommendations to the legislative body. Pursuant to §65354, a recommendation for approval requires the affirmative vote of not less than a majority of the total membership of the commission.
The public hearing enables the public to present testimony regarding the plan and further involves interested individuals in the process. Section 65090 provides that public hearing notices must be provided at least 10 days preceding the hearing. This is accomplished by placing notice in a local newspaper of general circulation. Alternatively, if there is no such newspaper, the notice must be posted in at least three public places within the jurisdiction of the local agency.
If the adoption or amendment of a specific plan would affect the permitted uses or intensity of uses of real property, 10 day prior notice of the hearing must also be mailed or delivered directly to each of the following: (1) the owner(s) of the property or the owner's duly authorized agent, and to the project applicant; (2) each local agency expected to provide water, sewage, streets, roads, schools, or other essential facilities or services to the project, whose ability to provide those facilities and services may be significantly affected; and (3) all owners of real property as shown on the latest equalized assessment roll within 300 feet of the boundaries of the real property that is the subject of the hearing (§65091). However, where the notice to nearby property owners would affect more than 1000 persons, a 1/8 page newspaper advertisement may substitute for that part of the notice. Additional and more specific requirements are listed and should be reviewed under this section.
In addition, the commission must provide advance notice to anyone who requests it in writing (§65092 or 65945). The commission may provide additional notice in any other manner it deems necessary or desirable.
Special notice pursuant to §65096 is required whenever a person applies for a specific plan amendment or any entitlement for use which would permit all or any part of a cemetery to be used for other than cemetery purposes.
Anyone may appeal the commission's decision to the legislative body under the procedures set forth under §65354.5. As with any legislative act, the legislative body, not the planning commission, has final say. In most cases, an appeal of the commission's decision may not be necessary because the legislative body must hold a public hearing on the matter anyway.
A legislative body must hold at least one public hearing prior to adopting or amending a specific plan (§65355). A public hearing notice must be published in a local newspaper of general circulation at least 10 days prior to the hearing (§65090) or if a local newspaper is not available then notice shall be posted in at least three public places pursuant to this section. The legislative body must also notify anyone who makes a written request for notice pursuant to §65092 or 65945. The notice, as with the planning commission, may also need to meet the requirements under §65096.
Once the hearing(s) have been completed, the legislative body will take action to approve, conditionally approve, or deny the specific plan. Any conditions of approval should be made an integral part of the specific plan prior to its adoption. If necessary, final approval should be delayed so that the conditions can be added. If the plan is to be approved with a substantial modification not previously considered by the commission, the plan must be referred back to the commission for their reconsideration and recommendation (§65356).
Unlike the general plan, which must be adopted by resolution (§65356), two options are available for the adoption of a specific plan. Adoption by resolution or adoption by ordinance. An ordinance is a local statute, enforceable by law. According to Black's Law Dictionary, the term "resolution" "... is usually employed to denote the adoption of a motion, the subject matter of which would not properly constitute a statute.... Such is not law but merely a form in which a legislative body expresses an opinion."
The choice between the two is dependent upon the role which the plan is proposed to fill. When adoption is by resolution, the specific plan becomes a policy document similar to the general plan. It takes the form of a more specific set of policies which may give direction to the mix of land uses or goals of a particular development. When adoption is by ordinance, the specific plan effectively becomes a set of zoning regulations that provide specific direction to the type and intensity of uses permitted or defines other types of design criteria including architectural standards. However, it is important to note that as in City of Sausalito v. County of Marin, (1970) 12 Cal.App.3d 550,565, the adoption of plans which effectively rezone property must be completed by ordinance consistent with §65850.
The enactment of a specific plan is a legislative act subject to adoption or repeal by voter initiative even when enacted by resolution (Yost v. Thomas (1984) 36 Cal. 3d 561, Midway Orchards v. County of Butte (1990) 220 Cal. App. 3d 765, De Vita v. County of Napa, (1995) 9 Cal. 4th 763).
Cities and counties have not only been subject to specific plan referenda (Chandis Securities v. City of Dana Point (1997) 52 Cal. 4th 475), but have also sponsored voter initiatives to adopt specific plans for a variety of reasons. One common reason is to increase public involvement though voter approval. In other circumstances, adoption by voter initiative has been used due to controversy or political expediency. In effect, the electorate makes legislative decisions in place of the city council or county board of supervisors.
The initiative and referendum may only be used to enact, change, or repeal a legislative act. An initiative may not be used to direct a plan to be prepared (Marblehead v. City of San Clemente (1991) 226 Cal. App. 1504). (See also: Growth Control by the Ballot Box: California's Experience, (1991) 24 Loyola of Los Angeles Law Review)
Actions filed to attack, set aside, void, or annul the decision of a
city or county to adopt or amend a specific plan must be brought within
90 days of the agency's decision (§65009). Judicial review of a specific
plan, including its conformance with the general plan, is based on whether
the action by legislative body was arbitrary, capricious, lacking evidentiary
support, and/or whether it failed to proceed with public notice, hearings,
and other procedural requirements of law. For a more comprehensive discussion,
see Curtin's California Land Use and Planning Law.
Pursuant to §65456, the legislative body may impose a charge on persons seeking approvals required to be consistent with an adopted specific plan or may require a deposit equal to the estimated cost of preparing a specific plan for adoption, amendment, or repeal. Costs may be recovered in any of several ways. An applicant seeking to initiate a project related specific plan may be required to deposit the estimated cost of the entire specific plan process at the front end of the application and then reimburse the agency for the final cost as a function of real cost accounting. Alternatively, a city or county may absorb the cost of the process and then recoup the cost through pro-rated developer fees or permit fees for projects required to be consistent with the adopted specific plan.
Cities and counties often utilize a combination of developer direct financing, developer fees, facility districts, and other financing mechanisms to recoup the cost of the specific plan preparation and implement the requirements of the plan.
In 1995, the following jurisdictions reported that they had adopted a specific plan cost recovery program pursuant to §65456:
Albany, Brea, Camarillo, Carlsbad, Ceres, Chino, Claremont, Clayton, Clovis, Colusa County, Corte Madera, Desert Hot Springs, Fresno, Guadalupe, Imperial County, Indio, La Verne, Los Angeles, Mammoth Lakes, Manteca, Modesto, Monrovia, Ojai, Ontario, Oxnard, Palmdale, Palos Verdes Estates, Perris, Poway, Ripon, Roseville, San Mateo County, Seal Beach, Signal Hill, Sutter County, Tracy, Union City, Upland, Ventura, Waterford, and West Sacramento.
The specific plan is an accumulation of information collected, organized, and transformed into a set of detailed objectives, policies, programs and standards used to guide future development. The information collected as part of public and agency involvement ensures that concerns, preferences, priorities, and needs are discussed and used in the decision making process. Section 65351 requires that the planning agency provide opportunities for the involvement of citizens, public agencies, public utility companies, and civic, education, and other community groups through hearings and any other means deemed appropriate.
Section 65352 further requires that the plan be referred to abutting cities or counties, special districts, school districts, local agency formation commissions, councils of government, public water systems supplying 3,000 or more customers, and specified air quality management districts. A city or county may accomplish this through public hearings or any other appropriate means including, but not limited to, community workshops, a website, written or telephone correspondence, and surveys. Each of these agencies has up to 45 days to comment on the proposed plan.
A good example of public and agency involvement is the City of San Jose's Evergreen Specific Plan adopted July 2, 1991. A specific plan task force was organized of property owners, developers, business owners, school district representatives, governmental agencies, and other stakeholders. The task force contributed to impact analyses, identification of issues, land use relationships and intensities, design standards, and infrastructure and service requirements.
In addition to the statute requiring the referral of plans and notification to specified local agencies and the public of its public hearings, notification pursuant to CEQA is required for the plan's environmental document. For further discussion of public notice and responsible and trustee agency review, refer to the State CEQA Guidelines and CEQA Deskbook by Ronald E. Bass, Albert I. Herson, and Kenneth M. Bogdan.
Additionally, §65919 et. seq. requires the proposal to adopt or
amend all or part of a specific plan to be referred to affected cities and
counties for comments and recommendations.
Unlike the mandatory elements of the general plan which, pursuant to
§65358(b), may not be amended more frequently than four times during
each calendar year, the specific plan may be amended as often as necessary
as provided for by the local legislative body pursuant to §65453(a).
However, no specific plan may be amended unless the proposed amendment is
consistent with the general plan (§65454).
OPR does not recommend attaching conditions to the approval of the specific
plan, especially when the plan would rezone or otherwise affect the permitted
uses or intensity of the use of land. Separating conditions from the plan
may complicate the administration and implementation by creating policies
or regulations that will directly affect the plan, but that are not included
in it. Internal inconsistencies between the plan and conditions may result.
The plan should be revised as needed prior to final adoption to incorporate
regulations and conditions directly into the plan.
A specific is repealed in the same manner that it is amended pursuant
to §65453(b). Just as in the adoption, the planning commission and
legislative body must each hold at least one public hearing prior to taking
action. Alternatively, a specific plan may be repealed by voter initiative.
The administration of specific plans require special care. Often, the design standards and zoning adopted under the plan will differ from that of the zoning ordinance covering the other portions of the community. Agencies which adopt several specific plans, each with its own format and unique development specifications, may encounter increased permit processing times and errors due to varying plans, formats, and provisions.
Several options exist in order to simplify plan administration. The first is educating planning staff about the intricacies of the plan through plan summaries, comparisons, and matrices. Existing zoning maps and other references should be changed to reflect the area covered by the plan and any changes in zoning or permit requirements. If necessary, the local zoning ordinance should be amended immediately to establish conformity with the plan. In jurisdictions where the adoption of several specific plans are being considered, the agency may consider adopting written specific plan guidelines. Guidelines for the preparation of specific plans establish format and content requirements which will enable staff to familiarize themselves and more effectively implement the plan. The guidelines may also provide project proponents with an explanation of the required plan elements and how it is utilized by the particular agency. (See appendix D for an example of specific plan guidelines)
Another option is to utilize computer software programs to aide in administration. The advent of "on-line" technology and "automated" project and permit review has provided planners with increasingly sophisticated tools which can be used to implement specific plans. For example, Placer County's new On-Line General Plan enables planners to review projects for consistency with the general plan by entering the important characteristics of land development projects into a software program. The program compares the project features with the plan, identifies applicable goals and policies by topical area, and prepares a report. Similar technology is available to assist in the implementation of the specific plan.
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This document is prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814